United States District Court, D. South Carolina, Florence Division
Jimmy B. K. Curles, Plaintiff,
Sgt. McCarthy, Sgt. Smith, Sgt. Bernard, Ofc. Dejurness, Ofc. Lester Hall, Sgt. Mahoney, Ofc. Shockley, Defendants.
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion for
Summary Judgment. ECF No. 59. Plaintiff filed Responses in
Opposition. ECF Nos. 63, 71. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this
matter was referred to United States Magistrate Judge Thomas
E. Rogers, III, for pre-trial proceedings and a Report and
Recommendation (“Report”). On January 25, 2019,
the Magistrate Judge issued a Report recommending that
Defendant's Motion for Summary Judgment be granted. ECF
No. 79 Plaintiff filed a Motion for Response, a Motion to
Appoint Counsel, and objections to the Report. ECF Nos. 81,
82, 83. Defendants filed a Response in Opposition to the
Motion to Appoint Counsel, and Plaintiff filed a
Supplement. ECF Nos. 87, 88.
LAW AND ANALYSIS
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of timely
filed objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” (citation omitted)).
appears to object to the resolution of this action with
respect to Ofc. Dejurness. Plaintiff states that he was first
informed that Dejurness was no longer employed by the South
Carolina Department of Corrections, however, “they
requesting him to be released from this suit . . . .”
ECF No. 83. Service of process was authorized as to Dejurness
on September 12, 2017. ECF No. 20. The summons issued for
Dejurness was returned unexecuted on October 5, 2017. ECF No.
30. The United States Marshal noted that he was unable to
serve Dejurness “due to no employee by that name and
not enough info to serve.” Id. On October 24,
2017, the Magistrate Judge issued a third proper form order
directing Plaintiff to provide additional information to
serve Dejurness and providing additional service documents
for completion. ECF No. 38. It does not appear that Plaintiff
returned the necessary service documents.
Magistrate Judge recommends dismissal of Dejurness pursuant
to Rule 4(m) of the Federal Rules of Civil Procedure. Rule
4(m) provides that the Court must dismiss without prejudice a
defendant who has not been served within 90 days or order
that service be made within a specified time. See also
Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010)
(tolling time for service during initial review). Plaintiff
is well outside the time limit for serving Dejurness and has
failed to provide any reason to extend the time for service.
Accordingly, this objection is overruled.
appears to argue that he sent a statement from Jamell Jackson
in support of his allegations to the Court. ECF No. 83. In
his next sentence, he states that Defendants “will
cover up th[eir] faults.” Id. Plaintiff does
not allege that Defendants prevented him from sending
additional documents nor does he provide any support for an
allegation that he sent a document to the Court that was not
received. Plaintiff has sent numerous documents to the Court
in support of this lawsuit. Accordingly, any objection with
respect to a missing document is overruled.
also alludes to the fact that he may not have “signed
the forms right.” This presumably pertains to the
Magistrate Judge's discussion of Plaintiff's failure
to sign the complaint form where it states, “I declare
under penalty of perjury that the foregoing is true and
correct.” ECF No. 79 at 2 FN 3. Plaintiff seems to
blame this oversight on the fact that he is pro se. Plaintiff
is not entitled to representation at this procedural posture.
There is no constitutional right to appointed counsel in a
civil case, Whisenant v. Yaum, 739 F.2d 160, 163
(4th Cir. 1984) (holding that 28 U.S.C. § 1915 does not
authorize compulsory appointment of counsel), abrogated
on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S.
296, 298 (1989), but this Court may exercise its discretion
to appoint counsel for an indigent in a civil action, 28
U.S.C. § 1915(d); see Smith v. Blackledge, 451
F.2d 1201, 1203 (4th Cir. 1971). However, the Fourth Circuit
has stated that counsel should be appointed only in
exceptional circumstances, which “will turn on the
quality of two basic factors-the type and complexity of the
case, and the abilities of the individuals bringing
it.” Brock v. City of Richmond, 983 F.2d 1055
(4th Cir. 1993) (internal quotation marks omitted) (quoting
Whisenant, 739 F.2d at 163). The pleadings and
documents filed in this case fail to demonstrate that
exceptional circumstances exist warranting the appointment of
counsel at this stage in the proceedings. Accordingly,
Plaintiff's objection is overruled.
construed, Plaintiff fails to provide any additional specific
objections; however, out of an abundance of caution for a pro
se Plaintiff, the Court has conducted a de novo review of the
record, the applicable law, and the Report of the Magistrate
Judge. Having done so, the Court agrees with the
recommendation of the Magistrate Judge that the Motion for
Summary Judgment be granted.
the Court adopts the Reports of the Magistrate Judge and
overrules Plaintiff's objections. Defendants' Motion
for Summary Judgment  is GRANTED, Ofc.
Dejurness is DISMISSED pursuant to Federal
Rule of Civil Procedure 4(m), Plaintiff's Motion to
Appoint Counsel  is DENIED, and
Plaintiff's Motion for Response  is
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...