United States District Court, D. South Carolina
F. Anderson, Jr. United States District Judge.
pro se plaintiff, Frederick Maurice McCoy, is
pretrial detainee at the Berkeley County Detention Center. He
brings this action pursuant to 42 U.S.C. § 1983 alleging
various claims against the defendant with regard to a prior
conviction that appears unrelated to his current detention.
Magistrate Judge assigned to this action has prepared a
Report and Recommendation wherein she suggests that this
court should dismiss the action pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure for lack of prosecution. The
Magistrate Judge also recommends that the district court
dismiss the case subject to plaintiff's right to file an
amended complaint within 21 days of the district court's
order on the Report so that the plaintiff may cure the
deficiencies noted in the Report.
Report and Recommendation sets forth in detail the relevant
facts and standards of law on this matter, and the court
incorporates such without a recitation.
order of December 21, 2017 (ECF No. 8), the plaintiff was
advised by the Magistrate Judge that his case was not in
proper form and he was provided instructions and forms to
bring the case into proper form for judicial screening. On
January 16, 2018, it appears that the plaintiff submitted a
proposed summons form to the Clerk of Court.
January 19, 2018, the Magistrate Judge entered another order
(ECF No. 12) allowing the plaintiff additional time to bring
his case into proper form, and it appears from the docket
that the plaintiff complied with that order.
Magistrate Judge issued her Report and Recommendation on
March 28, 2018 (ECF No. 21). From the docket, it appears that
on April 6, 2018, the plaintiff called the Clerk's office
to report that he had been released from the Detention Center
and provided the Clerk with a new address. The Clerk informed
him to send his change of address to the court in writing,
and that she would resend the Report to his new address.
plaintiff was advised of his right to file objections to the
Report and Recommendation, but no response was filed and the
time within which to do so has expired. As of the date of
this order, May 21, 2018, no further written communications
or responses have been received from the plaintiff. In the
absence of specific objections to the Report of the
Magistrate Judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court must
“only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Magistrate Judge's Report and Recommendation now before
this court (ECF No. 21), the Magistrate Judge suggests that
the complaint is subject to summary dismissal pursuant to 28
U.S.C. § 1915(e)(2(B). The Magistrate Judge opines that
the plaintiff has failed to name a defendant amenable to suit
under § 1983. Defendant SCDC is a department of the
State of South Carolina that has Eleventh Amendment immunity
from a suite for damages brought in this court. In other
words, the named defendant SCDC cannot be held liable under
§ 1983 for any of the matters alleged. Thus, plaintiff
has failed to state a plausible claim for relief.
Magistrate Judge further opines that the plaintiff may be
able to cure the deficiencies of his complaint by naming a
proper defendant. Goode v. Cent. Virginia Legal Aid
Soc'y, 807 F.3d 619 (4th Cir. 2015).
Magistrate Judge suggests that this court should dismiss the
complaint without prejudice and without issuance and service
of process, subject to the plaintiff's right to file an
amended complaint to cure the deficiencies noted in the
Report within 21 days after the district court enters its
carefully reviewing the applicable laws and the record in
this case, this court accepts the Magistrate Judge's
Report and Recommendation and finds that the Report fairly
and accurately summarizes the facts and applies the correct
principles of law.
this action is dismissed without prejudice. However, the
plaintiff shall have 21 days from the date of this order to
file an amended complaint to cure the deficiencies noted in
the Report and Recommendation.
amended complaint is received within this time period, the
case will be dismissed for lack of prosecution pursuant to