United States District Court, D. South Carolina, Rock Hill Division
Timothy M. Cain United States District Judge
Dyrell Muhammad, a prisoner proceeding pro se and
in forma pauperis, filed this action pursuant to 42
U.S.C. Â§ 1983. (ECF No. 1). In accordance with 28 U.S.C. Â§
636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was
referred to a magistrate judge for pretrial handling.
Defendants Gio Ramirez and Nanada Middleton filed a motion
for summary judgment. (ECF No. 93). Plaintiff filed a
response in opposition. (ECF No. 116). On September 30, 2019,
Magistrate Judge Paige J. Gossett issued a Report and
Recommendation (âReportâ) recommending the Defendants'
motion for summary judgment be granted. (ECF No. 120). The
parties were advised of their right to file objections to the
Report. (ECF No. 120-1). Plaintiff timely filed objections to
the Report. (ECF No. 122). This matter is now ripe for
recommendations set forth in the Report have no presumptive
weight, and this court remains responsible for making a final
determination in this matter. See Matthews v. Weber,
423 U.S. 261, 270-71 (1976). The court is charged with making
a de novo determination of those portions of the
Report to which a specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1). However, the
court need only review for clear error “those portions
which are not objected to-including those portions to which
only ‘general and conclusory' objections have been
made[.]” Dunlap v. TM Trucking of the Carolinas,
LLC, 288 F.Supp.3d 654, 662 (D.S.C. 2017). “An
objection is specific if it ‘enables the district judge
to focus attention on those issues-factual and legal-that are
at the heart of the parties' dispute.'”
Id. at 662 n.6 (quoting United States v. One
Parcel of Real Prop., With Bldgs., Appurtenances,
Improvements, & Contents, Known As: 2121 E. 30th St.,
Tulsa, Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)).
Plaintiff is proceeding pro se, this court is
charged with construing his pleadings liberally in order to
allow for the development of a potentially meritorious case.
See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal
citations omitted); Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). However, this does not mean that the
court can ignore the Plaintiff's failure to allege facts
that set forth a claim currently cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Plaintiff filed objections to the Report, none of his
objections specifically challenge any of the findings or
conclusions in the Report. See (ECF No. 122). The
objections are non-specific, unrelated to the dispositive
portions of the Report, or merely restate Plaintiff's
claims. However, liberally construing the objections,
Plaintiff asserts the magistrate judge was incorrect in
finding that, in his response to the motion for summary
judgment, Plaintiff attempted to assert a new claim for
retaliation against Defendant Middleton. (ECF No. 122 at 2).
A review of the portion of the Complaint referenced by
Plaintiff in his objection reflects no such retaliation
claim. (ECF No. 1 at 6). Therefore, as noted by the
magistrate judge (ECF No. 120 at 10 n.5), such claim is not
properly before the court. See, e.g.,
Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d
394, 400 (6th Cir. 2007) (holding that a party may not expand
its claims to assert new theories in response to summary
judgment); White v. Roche Biomed. Labs., Inc., 807
F.Supp.212, 1216 (D.S.C. 1992) (noting that “a party is
generally not permitted to raise a new claim in response to a
motion for summary judgment”). Accordingly, this
objection is without merit.
also objects to the magistrate judge's determination that
his Fifth Amendment due process claim must fail. (ECF No. 122
at 2). Plaintiff appears to refer to a Report and
Recommendation issued by a different magistrate judge in a
previous action. See id. Because such prior action
has no bearing on the allegations in this case, and the
findings of the magistrate judge in the Report do not rely
upon the findings of a different magistrate judge in a prior
case, this objection is also without merit.
Plaintiff objects to the magistrate judge's finding that
his claim pursuant to the Religious Land Use and
Institutionalized Persons Act (“RLUPIA”) should
be dismissed. (ECF No. 122 at 3). However, as noted by the
magistrate judge, the provisions of RLUIPA which relate to
institutionalized persons do not permit actions against the
federal government, which is omitted from the definition of
“government” set forth in 42 U.S.C. 2000cc-5(4).
(ECF No. 120 at 14). Accordingly, this objection has no
final objection merely restates the assertions he made in his
complaint relating to his claim under the Religious Freedom
Restoration Act (“RFRA”) and is without merit.
(ECF No. 122 at 3).
having thoroughly reviewed the Report and Plaintiff's
objections, the court finds no reason to deviate from the
Report's recommended disposition. The court adopts the
Magistrate Judge's Report (ECF No. 120) and incorporates
it herein. Accordingly, Defendants' Motion for Summary
Judgment (ECF No. 93) is GRANTED.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...