United States District Court, D. South Carolina
D. J. Donnelly, Plaintiff,
Ben Davis, District 3 Commissioner, Linda McDonald, General Counsel SCDOT, Stephanie Jackson Amell, Traffic Study Engineer, South Carolina Department of Transportation, Defendants.
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Jacquelyn D. Austin, made
in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina. D. J. Donnelly
(“Donnelly”), proceeding pro se and in forma
pauperis, alleges a claim for negligence and seeks injunctive
relief requiring Defendants to place a traffic light at a
dangerous intersection. (R&R 4, ECF No. 21.) Magistrate
Judge Austin recommends dismissing the complaint without
prejudice and without issuance and service of process because
Donnelly fails to demonstrate that the court has federal
jurisdiction over his claim, Donnelly lacks standing to
assert a claim for negligence, and Defendants are entitled to
Eleventh Amendment immunity. (Id., ECF No. 21.)
After review, the court adopts the magistrate judge's
Report and Recommendation.
filed objections to the Report and Recommendation on May 30,
2018. (Objs., ECF No. 28.) Objections to the Report and
Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party's right to
further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See
United States v. Schronce, 727 F.2d 91, 94 & n.4
(4th Cir. 1984). In the absence of specific
objections to the Report and Recommendation 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).
review, the court finds that many of Donnelly's
objections are non-specific, unrelated to the dispositive
portions of the magistrate judge's Report and
Recommendation, or merely restate his claims. However, the
court was able to glean one specific objection. Donnelly
objects that the magistrate judge erred in finding that the
Defendants were entitled to Eleventh Amendment immunity.
(Objs. 1-2, ECF No. 28.) This objection is without merit.
Eleventh Amendment bars suits by citizens against
non-consenting states brought either in state or federal
court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999);
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996).
The Supreme Court “has consistently held that an
unconsenting State is immune from suits brought in federal
courts by her own citizens as well as by citizens of another
State.” Edelman v. Jordan, 415 U.S. 651,
662-63 (1974). Eleventh Amendment immunity extends to arms of
the state, including state agencies and instrumentalities.
See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984) (finding “that in the absence
of consent[, ] a suit in which the State or one of its
agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment”); see also
Regents of the Univ. of California v. Doe, 519 U.S. 425,
429 (1997) (“It has long been settled that the
references to actions ‘against one of the United
States' encompasses not only actions in which a State is
actually named as the defendant, but also certain actions
against state agents and state instrumentalities.”).
Exceptions to sovereign immunity apply where a state has
given consent to be sued or where Congress abrogates the
sovereign immunity of a state, however, neither applies in
the instant case. See, e.g., McFadden
v. Stirling, No. 2:15-cv-04144-JMC, 2017 WL 4875575, at
*2 (D.S.C. Oct. 30, 2017) (unpublished).
Eleventh Amendment bars Donnelly's negligence claim
against the South Carolina Department of Transportation
(“SCDOT”) and its employees acting in their
official capacities. “The Fourth Circuit has recognized
that the South Carolina State Highway Department
(‘SCSHD') was protected by the Eleventh
Amendment.” Gregory v. South Carolina Dep't of
Transp., 289 F.Supp.2d 721, 724 (D.S.C. 2003) (citing
Faust v. South Carolina State Highway Dep't, 721
F.2d 934, 936 (4th Cir. 1983)). The SCDOT “replaced the
SCSHD for all practical purposes as of 1993.”
Id. (citing S.C. Code Ann. § 57-3-10). Further,
the Defendants are employees of the State of South Carolina
or its agencies working in their official capacities. Thus,
the Defendants are entitled to Eleventh Amendment immunity.
Moreover, Donnelly fails to demonstrate that the court has
federal jurisdiction and lacks standing to assert a claim for
negligence. Therefore, after a thorough review of the
magistrate judge's Report and the record in this case,
the court adopts Magistrate Judge Austin's Report and
that Donnelly's complaint, docket number 1, is dismissed
without prejudice and without issuance and service of
IS SO ORDERED.
OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal
this order within thirty (30) days from the date hereof,
pursuant to Rules 3 and 4 of the Federal Rules of Appellate
 The recommendation has no presumptive
weight, and the responsibility for making a final
determination remains with the United States District Court.
See Mathews v. Weber, 423 U.S. 261, 270 (1976). The
court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific
objection is made. The court may accept, reject, or modify,
in whole or in part, the recommendation made by ...