United States District Court, D. South Carolina, Rock Hill Division
Jeffrey S. Stroman, Plaintiff,
York County Department of Social Services, Defendant.
ORDER AND OPINION
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on October 18, 2018. (ECF No. 40.) The Report addresses
Plaintiff Jeffrey S. Stroman's suit under 42 U.S.C.
§ 1915 and recommends that the court grant
Plaintiff's request to voluntarily withdraw his federal
claims (ECF No. 34), dismiss the entire case without
prejudice, and terminate any other pending motions (ECF No.
21) as moot. For the reasons stated herein, the court
REJECTS the Report and
RECOMMITS the matter to the Magistrate Judge
for further consideration consistent with the opinion below.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards
which this court incorporates herein without a full
recitation. (ECF No. 40.) On June 14, 2018, Plaintiff,
proceeding pro se, filed this employment
discrimination action pursuant to 28 U.S.C. § 1915,
raising claims pursuant to the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 1201 et
seq., and the Family and Medical Leave Act
(“FMLA”), 28 U.S.C. §§ 2601 et
seq. (ECF Nos. 12, 16.) In response to Defendant's
Motion to Dismiss for Failure to State a Claim (ECF No. 21),
Plaintiff filed a Second Amended Complaint, which the
Magistrate Judge construed as a Motion to Amend, seeking to
withdraw his FMLA and ADA claims. (ECF No. 34.) In his Motion
to Amend, Plaintiff asserted for the first time claims of
intentional infliction of emotional distress and defamation
pursuant to the South Carolina Torts Claims Act, SC Code Ann
§§ 15-78-10, et seq.
(“SCTCA”). (ECF No. 34 at 3.) Plaintiff also
sought to add a DSS employee and York County as defendants to
this action, asserting claims against them pursuant to the
SCTCA. (Id. at 4.) Defendant does not oppose
Plaintiff's voluntary withdrawal of his federal claims.
(ECF No. 39.)
October 18, 2018, the Magistrate Judge issued an Order and
Report and Recommendation. (ECF No. 40.) The Order denied
Plaintiff's Motion to Amend because both Defendant and
proposed defendants, a DSS employee and York County, have
immunity for SCTCA claims brought in federal court.
(Id. at 2-4.) The Report recommended granting
Plaintiff's voluntary request for withdrawal of his FMLA
and ADA claims. (Id. at 4.) The Report reasoned that
because no valid claims would remain after the withdrawal of
the federal claims, the entire case should be dismissed
without prejudice. (Id.)
STANDARD OF REVIEW
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report and
Recommendation to which specific objections are made.
See 28 U.S.C. § 636(b)(1); see also
Fed. R. Civ. P. 72(b)(3). Thus, the court may accept, reject,
or modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
was apprised of his opportunity to file objections to the
Report on October 18, 2018. (ECF No. 40 at 6.) Objections to
the Report were due by November 1, 2018. (Id.)
However, objections were due by November 4, 2018, if a party
was served by mail or otherwise allowed under Fed.R.Civ.P. 6
or Fed. R Crim. P. 45. (Id.) Plaintiffs Objection
was filed on November 5, 2018, which is one day after the
deadline. (ECF No. 45.) In his untimely Objection, Plaintiff
requested an extension to re-file his FMLA and ADA claims.
(Id. at 2, 8.)
Plaintiff has expressed his intent to retract his voluntary
withdrawal of his FMLA and ADA claims in light of the
Magistrate Judge's Order, the court rejects the
Report's recommendation that the court grant Plaintiffs
request to withdraw his FMLA and ADA claims, rejects the
termination of Defendant's Motion to Dismiss, and rejects
the Report's recommendation that the entire case be
dismissed without prejudice. (ECF No. 34.)
thorough review of the Report and the record in this case,
the court REJECTS the Magistrate Judge's
Report and Recommendation (ECF No. 40). The court
RECOMMITS the case to the Magistrate Judge
to address the still pending FMLA and ADA claims in the
context of Defendant's now pending Motion to Dismiss.