United States District Court, D. South Carolina, Greenville Division
Harwell United States District Judge.
Olandio Ray Workman, a state pretrial detainee proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983.
See ECF No. 1. The matter is before the Court for
consideration of Plaintiff's objections to the Report and
Recommendation (“R & R”) of United States
Magistrate Judge Kevin F. McDonald, who recommends summarily
dismissing this action without prejudice. See ECF
Nos. 13 & 15.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed. R. Civ. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Plaintiff, presently detained at the Greenville County
Detention Center on state charges,  has filed a § 1983
complaint against Defendant Robert Perry, who is a police
investigator involved in Plaintiff's ongoing state
criminal case, and Defendant James Walsh, who is an attorney
defending Perry in another § 1983 case filed by
Plaintiff in this Court, see Workman v. Perry, No.
6:17-cv-02136-RBH (D.S.C.) (“the Related Case”).
See ECF No. 1. Plaintiff's allegations relate in
part to an affidavit given by Defendant Perry in support of a
motion for summary judgment in the Related Case; Plaintiff
alleges Defendant Perry gave “false, and misleading,
incomplete testimony” in that affidavit. See ECF
No. 1 at pp. 5, 7-9. The Magistrate Judge has reviewed
Plaintiff's complaint and recommends summarily dismissing
this action because (1) Plaintiff cannot maintain a civil
action for perjury, (2) no diversity jurisdiction exists for
any libel or slander claims, and (3) Plaintiff has failed to
state a viable due process claim. See R & R at
pp. 2-3. Furthermore, the Magistrate Judge recommends
declining to automatically give Plaintiff leave to amend
because amendment would not cure the defects in his
complaint. See Id. at p. 3. Plaintiff objects to the
Magistrate Judge's recommendations. See
Pl.'s Objs. [ECF No. 15].
Plaintiff appears to argue his claim for perjury is actually
a claim for civil contempt. See Pl.'s Objs. at
p. 1. However, “[t]here is no such thing as an
independent cause of action for civil contempt, ”
Finn v. Schiller, 72 F.3d 1182, 1188 (4th Cir. 1996)
(quoting Blalock v. United States, 844 F.2d 1546,
1550 (11th Cir. 1988)). Rather, “civil contempt is a
device used to coerce compliance with an in personam order of
the court which has been entered in a pending case.”
Blalock, 844 F.2d at 1550 (citing McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949), and
Gompers v. Buck's Stove & Range Co., 221
U.S. 418, 441-42 (1911)). Accordingly, Plaintiff cannot
maintain a claim for civil contempt.
next contends he has stated a due process claim by asserting
Defendants “alter[ed] [the] NCIC sheet” relating
to Plaintiff's prior convictions. See Pl.'s
Objs. at p. 2. However, as the Magistrate Judge explains,
Plaintiff is essentially attacking statements made by
Defendant Perry in the context of Plaintiff's ongoing
state criminal prosecution, and Plaintiff's dispute with
such statements does not implicate due process concerns here.
See R & R at p. 3.
further asserts that “not anywhere did I say libel and
slander” in his complaint, and instead seeks to bring a
“1st amendment retaliation claim” based on
Defendants' filing a “false and altered misleading
incomplete report on court document in a civil action.”
See Pl.'s Objs. at p. 2. To the extent Plaintiff
claims Defendants violated his First Amendment rights by
making filings in the Related Case (such as Defendant
Perry's affidavit), such an allegation does not state a
First Amendment retaliation claim. See generally Martin
v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (listing the
elements of a § 1983 First Amendment retaliation
Plaintiff objects to the Magistrate Judge's
recommendation that the Court should decline to automatically
give Plaintiff leave to amend. See Pl.'s Objs.
at p. 2. However, the Court agrees with the Magistrate Judge
that Plaintiff cannot cure the defects in his complaint by
mere amendment. See generally Goode v. Cent. Virginia
Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir.
2015); Domino Sugar Corp. v. Sugar Workers Local Union
392, 10 F.3d 1064, 1066 (4th Cir. 1993). The Court
therefore declines to automatically give Plaintiff leave to
amend and will dismiss this action instead.
foregoing reasons, the Court overrules Plaintiff's
objections, adopts the R & R [ECF No. 13], and
DISMISSES this action without prejudice
and without issuance and service of process.