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Workman v. Perry

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

June 1, 2018

Olandio Ray Workman, Plaintiff,
v.
Robert Perry, Investigator; and James P. Walsh, Lawyer, Defendants.

          ORDER

          Bryan Harwell United States District Judge.

         Plaintiff 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.[1] See ECF Nos. 13 & 15.

         Standard of Review

         The 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).

         The 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).

         Discussion[2]

Plaintiff, presently detained at the Greenville County Detention Center on state charges, [3] 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.[4] 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].

         First, 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.

         Plaintiff next contends he has stated a due process claim by asserting Defendants “alter[ed] [the] NCIC[5] sheet” relating to Plaintiff's prior convictions.[6] 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.

         Plaintiff 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 claim).[7]

         Finally, 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.

         Conclusion

         For the 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.

         IT ...


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