United States District Court, D. South Carolina, Florence Division
Robert L. Mitchell, Plaintiff,
Scott Lewis, et al. Defendants.
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
the Court is Plaintiffs Appeal and Objection (Dkt. No. 17) to
the Magistrate Judge's Order (Dkt. No. 14) 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.
Mitchell 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. 7.) 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. 10.) 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. 14.)
failed to comply with that deadline as well, and instead
objected the Magistrate Judge's decision to this Court,
arguing the Magistrate Judge's order was "submerged
with malice," introduced "scandalous matter"
and that the Magistrate Judge is biased and should recuse
himself from the case. (Dkt. No. 17.) The Court addresses
these matters and affirms the holdings of the Magistrate
of a magistrate judge's decision on non-dispositive
matters 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 (1948).
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. 7), 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's 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 an Order of the
Court pursuant to Rule 41.
in his objection, Plaintiff makes 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
Objections (Dkt. No. 17), AFFIRMS the Magistrate Judge's
Orders (Dkt. Nos. 7, 14) and ORDERS that the Plaintiff file
an amended complaint curing the deficiencies detailed by the
magistrate judge in the proper form order (Dkt. No. 7) within
TWENTY-ONE (21) DAYS of this Order.