United States District Court, D. South Carolina, Columbia Division
Thurmond R. Guess, Sr., Plaintiff,
Sharon Y. Hipps; State Farm Insurance; H. Ranald Stanley; John Austin Hood; Gallivan White Boyd; Johnston Cox; William P.A. Buyck, III; Geico Indeminty Co.; Elliott B. Daniels; South Carolina Department of Motor Vehicles; Shirley H. Rivers, Defendants.
AMENDED OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
R. Guess, Sr. (“Plaintiff”), proceeding pro se
and in forma pauperis, brought this action against Sharon Y.
Hipps; State Farm Insurance; H. Ranald Stanley; John Austin
Hood; Gallivan White Boyd; Johnston Cox; William P.A. Buyck,
III; Geico Indemnity Co.; Elliott B. Daniels; South Carolina
Department of Motor Vehicles (“SCDMV”); and
Shirley H. Rivers (collectively “Defendants”)
claiming violations of state law and his constitutional
rights pursuant to 42 U.S.C. § 1983. ECF No.
In accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 (B)(2)(d), D.S.C., the matter was referred to
United States Magistrate Judge Paige J. Gossett for pre-trial
proceedings. On May 9, 2019, the Magistrate Judge issued a
Report and Recommendation (“Report”) recommending
this matter be summarily dismissed with prejudice and without
issuance and service of process. ECF No. 21. The Magistrate
Judge advised Plaintiff of the procedures and requirements
for filing objections to the Report and the serious
consequences if he failed to do so. Plaintiff filed
objections on May 20, 2019. ECF No. 25.
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 reviews 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 a 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).
considering the record, the applicable law, the Report and
Recommendation of the Magistrate Judge and Plaintiff's
objections, the court agrees with the Report's
recommendation the case be dismissed. In his objections,
Plaintiff argues his case is “not frivolous or
malicious” because Defendants violated state law as
well as his Fifth and Seventh Amendment rights under the
Constitution. ECF No. 25. He contends he has “stated
facts that would support and survive summary judgment.”
Id. at 2. He argues his Seventh Amendment rights
were violated because he was not given a jury trial, but his
case was taken off the docket without notice. He also argues
the SCDMV and Defendant Rivers violated his Fifth Amendment
rights by refusing to clear his driver record after he was
found not guilty of a “following too closely”
charge. Id. He contends his case
“equates” to Bivens and all Defendants are
“subject to a biven [sic] action for the violation of
the constitution in this matter.” Id. Finally,
he requests the Magistrate Judge recuse herself from all of
his cases. Id.
court finds Plaintiff's objections unavailing. As noted
by the Magistrate Judge, many of the Defendants are private
parties and not amenable to suit under § 1983 or Bivens,
as they are not state actors. Therefore, Plaintiff cannot
bring a § 1983 or Bivens action against Defendants
Hipps, State Farm Insurance, Stanley, Hood, Gallivan White
Boyd, Cox, Buyck, Geico, or Daniels. Plaintiff has alleged no
facts showing any connection to the government so that they
could be considered state actors under § 1983, or
federal actors under Bivens. The court also agrees Plaintiff
has failed to state facts sufficient to allege a claim of
racial discrimination against State Farm Insurance.
Defendant SCDMV is immune to claims for damages under §
1983. As to Defendant Rivers, a SCDMV employee, the court
agrees Plaintiff has failed to allege facts sufficient to
allege a violation of his constitutional rights. The court
further agrees with the Magistrate Judge Plaintiff fails to
provide any facts to support an ADA claim or an intentional
infliction of emotional distress claim. Plaintiff's
objections do nothing to change these conclusions.
it does not appear Plaintiff would be able to further amend
his Amended Complaint to allege any facts that would allow
him to sue these Defendants. Plaintiff has been given the
opportunity to amend his Complaint, and his Amended Complaint
still fails for the reasons above. Accordingly, the court
adopts the Report by reference in this Order. This matter is
hereby dismissed with prejudice and without issuance and
service of process.
 Plaintiff filed his original Complaint
on February 12, 2019, and was given an opportunity to amend
his Complaint by Order of the Magistrate Judge to cure
identified deficiencies. ECF Nos. 1 (Complaint), 11 (Order).
Plaintiff filed his ...