United States District Court, D. South Carolina, Charleston Division
David B. Harrell, Jr., Plaintiff,
Bryan Stirling and Martin Frink, Defendants.
OPINION AND ORDER
Cameron McGowan Currie Senior United States District Judge
matter is before the court on Plaintiff's Complaint filed
June 13, 2019. ECF No. 1. 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 Mary
Gordon Baker for pre-trial proceedings and a Report and
Recommendation (“Report”) on dispositive issues.
August 2, 2019, the Magistrate Judge issued a Proper Form
Order and a Reference Order, granting Plaintiff's motion
to proceed in forma pauperis and denying his motion for
hearing/to appoint counsel, and also notifying Plaintiff
portions of his Complaint were subject to summary dismissal
for failure to state a claim. ECF Nos. 12, 13, 14. Plaintiff
was given an opportunity to amend his Complaint and was
notified that if he failed to do so, the Magistrate Judge
would recommend summary dismissal on some claims. ECF No. 7.
Plaintiff filed objections to the Proper Form Order, stating
his Complaint contained sufficient evidence of his claims.
ECF No. 18. He also filed a Proposed Amended Complaint,
containing the same allegations as his original Complaint.
ECF No. 19.
September 12, 2019, the Magistrate Judge issued a Report
recommending certain claims and Defendant Frink be summarily
dismissed. ECF No. 24. The Report also recommended
Plaintiff's equal protection claim against Defendant
Stirling for race-based prison transfers be allowed to
proceed. 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.
The court received Plaintiff's timely filed objections on
October 1, 2019. ECF No. 26.
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).
Report notes Plaintiff resubmitted the same allegations
instead of filing an Amended Complaint addressing the
deficiencies identified by the Magistrate Judge in her Proper
Form Order, and filed a letter disagreeing with the Proper
Form Order. ECF No. 24 at 2. The Report considered
Plaintiff's letter, and believes Plaintiff confused
summary judgment with summary dismissal. Id. at 4.
Plaintiff focused on the evidence he provided to prove his
claims, instead of addressing legal deficiencies in his
Complaint. Id. The Report goes on to recommend
Plaintiff's claims against Defendant Frink and claims
other than equal protection race-based prison transfer be
dismissed as they fail to state a facially plausible claim
for relief. Id.
objects to the Report, arguing the court is
“deliberately misconstru[ing] his argument”
regarding his Due Process claim. ECF No. 26 at 1. He asserts
the state created a procedural due process for
inner-state-compact transfers and then violated that process.
Id. He also argues he does not have access to
institutional opportunities the inmates in South Carolina
Department of Corrections custody have, but similarly
situated inmates have that access. Id. at 2. He
contends he is being denied his right to rehabilitation and
suffers deprivation of visitation due to the transfer.
Id. Finally, he argues his claims should be allowed
to continue, including those against Defendant Frink, because
the exhibits attached to his Complaint clearly establish
those claims. Id. at 2-3.
court finds Plaintiff's objections unavailing. Again,
Plaintiff merely reiterates his disagreement with the court.
Plaintiff cites a state statute and policy manual he states
create a procedural due process right; however, those
documents do not create a violation of the United States
Constitution sufficient to pursue in federal court. The
Report explains why his other claims similarly do not rise to
the level of constitutional violations. In addition, to the
extent Plaintiff argues exhibits attached to his Complaint
show the material facts of his claims, the court notes
Fed.R.Civ.P. 8(a) requires complaints to contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” His Complaint
contains no reference to Defendant Frink's actions he
asserts violate his rights.
review of the record, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court agrees with
the Report's recommendation certain claims and Defendant
Frink should be dismissed. Accordingly, the court adopts the
Report by reference in this Order. Defendant Frink is hereby
dismissed without prejudice, as are Plaintiff's claims
other than the equal protection claim against Defendant
Stirling. The equal protection claim regarding race-based
prison transfers shall proceed. This case is re-referred to
the Magistrate Judge for further pre-trial proceedings.
 Plaintiff originally filed this
Complaint with another inmate, Warren Russell. The court
determined the two plaintiffs would not be permitted to
proceed in a single suit, terminated Russell from that suit,
created a new case, and filed the Complaint in this case for