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Perez v. South Carolina Department of Labor, Licensing and Regulation

United States District Court, D. South Carolina, Columbia Division

June 1, 2018

Nancy C. Perez, Plaintiff,
v.
South Carolina Department of Labor, Licensing and Regulation and Director Holly Gillespie Pisarik, in her official and personal capacities, Defendants.

          ORDER

          JOSEPH F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Nancy C. Perez (Plaintiff) brings this action pro se against South Carolina Department of Labor, Licensing and Regulation and Director Holly Gillespie Pisarik, in her official and personal capacities (Defendants). Plaintiff's Complaint asks the Court to compel Defendants to allow her to practice as a nurse in South Carolina and to provide her with back pay from July 2014 to present. The South Carolina Department of Labor, Licensing and Regulation (SCDLLR) has temporarily denied her license due to an unexplained discrepancy between Plaintiff's application and her background check.[1]After Plaintiff was unsuccessful in state court, she brought this nearly identical action in federal court on November 27, 2017. Defendants filed a motion for judgment on the pleadings on January 11, 2018. (ECF No. 26). Plaintiff responded on January 12, 2018. (ECF No. 29). Defendants filed a reply on January 17, 2018. (ECF No. 31). Plaintiff proceeded to file three amended responses and Defendants' subsequently filed a reply to each of those.

         After reviewing the pleadings, the Magistrate Judge assigned to this action[2]prepared a thorough Report and Recommendation (Report) and opines that Defendants' Motion for Judgment on the Pleadings (ECF No. 26) should be granted. The Magistrate found that Plaintiff failed to state a claim upon which relief can be granted for a violation of her right to due process pursuant to 42 U.S.C. § 1983. The Magistrate further found that Plaintiff's motion for a temporary restraining order and preliminary injunction (ECF No. 17) should be denied as moot. The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation.

         Plaintiff filed objections to the Report on March 28, 2018. (ECF No. 50). Defendants filed a reply to the objections on March 30, 2018. (ECF No. 51). Plaintiff filed amended objections on April 5, 2018. (ECF No. 52). Defendants filed a reply to Plaintiff's amended objections on April 18, 2018. (ECF No. 53). Plaintiff then filed a motion to amend her objections with the amended objections attached. (ECF No. 54). The Court grants Plaintiff's motion to amend, and therefore, considers Plaintiff's Second Amended Objections to the Report as Plaintiff's objections.

         The Court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). In the absence of specific objections to portions of the Report, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         “An objection is specific if it ‘enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.'” Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A specific objection to the Magistrate's Report thus requires more than a reassertion of arguments from the Complaint or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). “[G]eneral and conclusory objections that do not direct the court to a specific error in the Magistrate's proposed findings and recommendations” are not specific objections and do not warrant de novo review. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir. 1982).

         II. DISCUSSION

         Plaintiff asserts several objections to the Report. The Court does its best to decipher Plaintiff's lengthy and often disjointed arguments. As discussed below, the objections are without merit.[3]

         A. Objection - 42 U.S.C. § 1981

         Plaintiff argues that the Magistrate Judge erred when she ruled that the court did not have jurisdiction pursuant to 42 U.S.C. § 1981.[4] Plaintiff contends that she properly asserted a claim pursuant to 42 U.S.C. § 1981, and therefore, her complaint was filed within the four year statute of limitations period.

         The Magistrate Judge correctly construed Plaintiff's Amended Complaint as relief pursuant to 42 U.S.C. § 1983. When a suit is brought against a state actor, 42 U.S.C. § 1983 is the exclusive federal remedy for violation of the rights guaranteed in 42 U.S.C. § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701. Further, individuals cannot be liable under § 1981 unless “they ‘intentionally cause [an employer] to infringe the rights secured by' section 1981.” Carson v. Giant Food, Inc., 187 F.Supp.2d 462, 483 (D.Md. 2002) (quoting Tillman v. Wheaton-Haven Recreation Ass'n, 517 F.2d 1141, 1145 (4th Cir. 1975).

         Neither party disputes that the SCDLLR is a state actor. Furthermore, as to defendant Director Holly Gillespie Pisarik (Pisarik), Plaintiff does not properly allege a claim pursuant to 42 U.S.C. § 1981. Plaintiff does not allege that Pisarik intentionally caused SCDLLR to infringe on the rights secured by § 1981. Therefore, the Magistrate Judge properly construed Plaintiff's Amended Complaint as only a 42 U.S.C. § 1983 claim.

         C. Objection - ...


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