United States District Court, D. South Carolina, Florence Division
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
the Court is Plaintiffs Appeal (Dkt. No. 20) to the
Magistrate Judge's Order (Dkt. No. 17) requiring
Plaintiff to comply with the Court's proper form order
and denying a motion to strike. For the reasons set forth
below, the Court overrules Plaintiffs Objections.
Ackbar filed this action pursuant to 42 U.S.C. § 1983,
alleging various constitutional violations while Plaintiff
was incarcerated. (Dkt. No. 1.) On July 29, 2019, the
Magistrate Judge issued a proper form order, directing the
Plaintiff to file an amended complaint within twenty-one days
to cure various pleading deficiencies in his Complaint. (Dkt.
No. 10.) The Plaintiff failed to file an amended complaint,
and instead filed a "motion to strike," seeking to
strike the Magistrate Judge's proper form order. (Dkt.
No. 13.) The Magistrate Judge, in a text order, denied the
motion to strike and reiterated that the Plaintiff must file
an amended complaint to cure pleading deficiencies, setting a
new deadline for September 26, 2019. (Dkt. No. 17.)
failed to comply with this deadline as well, and instead
appealed the Magistrate Judge's decision to this Court,
arguing the Magistrate Judge's order introduced
"scandalous matter" and that the Magistrate Judge
is biased and should recuse himself from the case. (Dkt. No.
20.) The Court addresses these matters and affirms the
holdings of the Magistrate Judge.
of a magistrate judge's decision on non-dispositive
matters, such as discovery, is deferential, and a magistrate
judge's order on such issues will be set aside only if it
is "clearly erroneous or is contrary to law."
Fed.R.Civ.P. 72(a); see also 28 U.S.C. §
636(b)(1)(A); Owens v. Stirling, No.
015MC00254TLWPJG, 2016 WL 3397586, at *2 (D.S.C. June 21,
2016) (applying the clearly erroneous or contrary to law
standard to objections to a magistrate judge's discovery
order). A decision "is 'clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed."
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
Court finds that the Magistrate Judge has ably addressed
these issues. The Court, as required by Goode v. Cent.
Virginia Legal Aid Soc 'y, Inc., 807 F.3d 619 (4th
Cir. 2015) and Fourth Circuit cases applying Goode,
provided Plaintiff with an opportunity to amend his complaint
to cure pleading deficiencies. The Court reiterated this
holding via text order. Given the pleading deficiencies laid
out in the Magistrate Judge's proper form order (Dkt. No.
10), the Court agrees that it is proper for Plaintiff to be
given time to amend his complaint to cure any deficiencies.
Plaintiff, however, has failed to comply with the court
orders and his Complaint remains deficient in the manner
detailed by the Magistrate Judge. Therefore, the Court denies
Plaintiffs appeal and objections, and requires Plaintiff to
file an amended complaint no later than twenty-one (21) days
after the issuance of this Order. Should Plaintiff fail to
comply with this Order, his Complaint will be subject to
dismissal with prejudice for failure to comply with a Order
of the Court pursuant to Rule 41.
in his appeal, Plaintiff makes vague reference to a judge
having to "recuse himself for "personal bias or
prejudice." To the extent Plaintiff seeks the recusal of
Judge Gergel and Judge Rogers in his objections, that request
is denied. See Liteky v. United States, 510 U.S.
540, 551 (1994) ("[T]he judge is not...recusable for
bias or prejudice, since his knowledge and the opinion it
produced were properly and necessarily acquired in the course
of the proceedings, and are indeed sometimes... necessary to
completion of the judge's task").
foregoing reasons, the Court OVERRULES the
Plaintiffs Appeal and Objections (Dkt. No. 20),
AFFIRMS the Magistrate Judge's Orders
(Dkt. Nos. 10, 17) and ORDERS that the
Plaintiff file an amended complaint curing the deficiencies
detailed by the magistrate judge in the proper form order
(Dkt. No. 10) within TWENTY-ONE (21) DAYS of