United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel, United States District Court Judge.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 13) recommending
that the Court dismiss the case with prejudice. For the
reasons set forth below, the Court adopts the R & R as
the Order of the Court, and dismisses the case with
David Mosley ("Plaintiff) is proceeding pro se
and in forma pauperis. He filed this action on May
29, 2019 alleging that pursuant to 42 U.S.C. § 1983, a
violation of his civil rights occurred. (Dkt. No. 1.) On June
4, 2019, the Magistrate Judge filed an Order and Notice
giving Plaintiff the opportunity to address and correct
certain pleading deficiencies in his complaint through the
filing of an amended complaint. (Dkt. No. 7.) Plaintiff filed an
amended complaint on June 14, 2019. (Dkt. No. 9.) In his
amended complaint, Plaintiff alleges he is a pre-trial
detainee at the Cherokee County Detention Center.
(Id. at 2.) He alleges that on May 4, 2019, Officer
Katina Scarcella ("Defendant") transferred $500 out
of his account under false pretenses. (Id. at 5.)
Plaintiff asserts Defendant's actions are a violation of
the Fourteenth Amendment and he seeks $20, 000. (Id.
at 4, 6.) On June 19, 2019, the Magistrate Judge filed an R
& R recommending the Court dismiss Plaintiffs amended
complaint for failure to state an actionable claim. (Dkt. No.
13 at 5-6.) On July 3, 2019, Petitioner filed timely
objections to the R & R. (Dkt. No. 15.)
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, e.g., Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Where the plaintiff objects to the R & R, the Court
"makes a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made."
Id. Where the petitioner has not objected, the Court
reviews the R & R to "only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation." Fed.R.Civ.P. 72 advisory
committee's note. In the absence of objections, the Court
need not give any explanation for adopting the Magistrate
Judge's analysis and recommendation. See, e.g., Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In
the absence of objection ... we do not believe that it
requires any explanation."). The Plaintiff filed
objections and the R & R is reviewed de novo.
thorough review of the R & R and Plaintiffs timely
objections (Dkt. No. 15), the Court finds that the Magistrate
Judge ably addressed the issues and correctly concluded that
Plaintiff s case should be dismissed.
proceeds pro se and in forma pauperis
pursuant to 28 U.S.C. § 1915. After giving Plaintiffs
complaint appropriate liberal construction, it presents a
Fourteenth Amendment claim for deprivation of property
without due process. Yet, this claim must be dismissed
because the action fails to state a claim on which relief may
be granted. See 28 U.S.C. 1915(e)(2)(B)(i-ii)
(giving the Court authority to dismiss complaint upon a
finding the action fails to state a claim on which relief may
be granted or is frivolous or malicious.) First, the
Magistrate Judge correctly identified Plaintiffs claim does
not allege Defendant acted pursuant to an established state
procedure. (Dkt. No. 13 at 5.) An actionable claim for relief
pursuant to 42 U.S.C. § 1983 must involve (1) a
deprivation of any of Plaintiffs "rights, privileges, or
immunities secured by the [United States] Constitution and
laws" and (2) by a "person" acting under
"color of state law." Gomez v. Toledo, 446
U.S. 635, 640 (1980); 42 U.S.C. § 1983. While an
authorized, intentional deprivation of property is actionable
under the Due Process Clause, "an unauthorized
intentional deprivation of property by a state employee does
not constitute a violation of the procedural requirements of
the Due Process Clause of the Fourteenth Amendment if a
meaningful post-deprivation remedy is available for the
loss." Hudson v. Palmer, 468 U.S. 517, 533
(1984); Parratt v. Taylor, 451 U.S. 527 541-42
(1981). Further, the Due Process Clause is not implicated by
a negligent act of an official causing unintended loss or
injury to life, liberty or property. Daniels v.
Williams, 474 U.S. 327, 328 (1986). Since there is no
allegation Defendant acted pursuant to a state procedure and
there is a meaningful post-deprivation remedy available,
Plaintiffs §1983 claim cannot proceed.
contends that "South Carolina's post-deprivation
remedy is unavailable because he 'asked to file a civil
suit and was told that [he] cannot.'" (Dkt. No. 9 at
5.) On this point, the Magistrate Judge correctly identified
that the amended complaint does not allege why Plaintiff may
pursue his claim in this Court, but not pursue the state
court post-deprivation remedy. (Dkt. No. 13 at 5-6.) South
Carolina law allows a prisoner to bring a civil action in
state court for recovery of personal property against prison
officials who deprived them of property without state
authorization pursuant to § 15-69-10, et seq.,
which is considered a post-deprivation remedy sufficient to
satisfy due process requirements. See McLntyre v.
Portee, 784 F.2d 566, 567 (4th Cir. 1986). Plaintiffs
amended complaint does not explain why this state court
remedy is not available or is inadequate to him. As such the
amended complaint fails to state an actionable claim and is
subject to dismissal. 28 U.S.C. 1915 (e)(2)(B)(i-ii).
foregoing reasons, the Court ADOPTS the R & R of the
Magistrate Judge (Dkt. No. 13) as the Order of the Court.
Plaintiffs case is DISMISSED WITH PREJUDICE.