McFadden v. Lewis et al
Filing
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OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION incorporating 16 Report and Recommendation, denying 3 Motion for TRO filed by Jerome McFadden and dismissing case without prejudice and without service of process. Signed by Honorable Mary G Lewis on 11/7/2012. (jpet, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jerome McFadden,
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Plaintiff,
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v.
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S.B. Lewis, Associate Warden,
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Frank Mursier, Major McCl;
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L. Carteledge, Warden at McCl
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McCormick Correctional Institution,
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Defendants.
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____________________________________)
Civil Action No. 0:12-1627-MGL
ORDER AND OPINION
Plaintiff Jerome McFadden (“Plaintiff”) is a state prisoner at the McCormick Correctional
Institution of the South Carolina Department of Corrections. On June 14, 2012, Plaintiff, proceeding
pro se filed this civil action against S.B. Lewis, Frank Mursier, and L. Carteledge (“Defendants”)
complaining about his transfer to McCormick Correctional Institution, his placement in
administrative segregation, the loss of a prison job, and verbal harassment by correctional officers
and guards. (ECF No. 1.) Plaintiff seeks a declaratory judgment declaring that Defendants’ conduct
violated his constitutional rights, a preliminary and permanent injunction prohibiting Defendants and
their successors from denying his rights or retaliating against Plaintiff for filing this lawsuit, and
compensatory and punitive damages. Plaintiff also filed a separate motion for a temporary
restraining order. (ECF No. 3.) In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02 D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial
handling. On July 16, 2012, Magistrate Judge Gossett issued a Report and Recommendation
recommending inter alia that the court dismiss Plaintiff’s complaint without prejudice and without
service of process and further recommending that the motion for temporary restraining order be
denied. (ECF No. 16 at 8.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with this court.
See 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). The court may also receive further evidence or recommit the matter to the Magistrate
Judge with instructions. Id. The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made.
Plaintiff objected to the Magistrate Judge’s recommendation to this court on July 26, 2012
(“Objections”). (ECF No. 22.) After conducting a de novo review of the objections made, and
considering the record, applicable law, and the Report and Recommendation of the Magistrate
Judge, the court agrees that this matter should be dismissed without prejudice and without service
of process. The court further agrees that the Plaintiff’s motion for a temporary restraining order
should be denied. The court will attempt to address each objection to the extent the objections relate
to a specific portion of the Report and Recommendation.
OBJECTIONS
First, the court acknowledges Plaintiff’s initial concern regarding the assignment of district
judges in this case made in both his objections to the Report and Recommendation and in a July 30,
2012 letter to the court. (ECF No. 22 & 23.) The court assures Plaintiff that the assignment to the
undersigned is documented correctly in the Clerk’s office and any references to “DCN” as the
assigned judge is merely a scrivener’s error associated with the reassignment of judges to this case.
Secondly, Plaintiff takes issue with the Magistrate Judge’s recitation of the facts in the Report and
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Recommendation, particularly in the “Background” section of the Report and Recommendation.
(ECF No. 22 at 2.) The court finds that the Magistrate Judge has merely highlighted the most
pertinent facts relevant to this analysis and any alleged omitted facts simply do not change the wellreasoned analysis.
Next, the court considers Plaintiff’s objection related to his motion for a temporary
restraining order and injunctive relief concerning his “First Amendment Right to Practice his
Religious Beliefs” as a Muslim. (ECF No. 22 at 7.) These allegations were not made in either the
complaint or the motion for temporary restraining order and therefore were not before the Magistrate
Judge when reviewing this case. Based on the allegations made in the first instance in the
Objections to the Report and Recommendation, Plaintiff has not stated a claim under the First
Amendment concerning a violation of his rights to practice his religion beliefs because Plaintiff did
not make any factual allegations against any specific correctional officials or guards. Further, these
allegations were not properly pled before this court. (ECF No. 22 at 7.) To the extent, Plaintiff
believes he has a claim for a violation of his First Amendment right to practice his religious beliefs,
he is certainly entitled to pursue his administrative remedies and then file appropriate lawsuit to that
end.
Finally, the court finds that the Magistrate Judge correctly applied the relevant and applicable
standards and case law to the analysis of the merits of Plaintiff’s claims and review of the complaint.
The court further finds that the Magistrate Judge issued a Report and Recommendation which was
both fair and impartial. As the Magistrate Judge correctly noted, Plaintiff’s allegations concerning
his transfer to another institution, mere threats and verbal harassment, administrative segregation,
and loss of a prison job in 2002 or 2003 do not state a claim for a civil rights violation. Contrary
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to Plaintiff’s assertions and as articulated through the case law cited in the Report and
Recommendation, the complained of actions do not involve the sort of “liberty interests which are
protected by the Due Process Clause.” See, e.g., Sandin v. Conner, 515 U.S. 472, 483 (1995)
(holding that putting an inmate in segregated confinement does not violate inmate’s constitutional
rights because it did not impose “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”). The remainder of Plaintiff’s objections are not directed to
specific portions of the Report and Recommendation, rather, they are general and conclusory. This
court has reviewed the objections and finds that they are without merit.
CONCLUSION
After a careful review of the record, the applicable law, and the Report and Recommendation
and Objections, the court finds the Magistrate Judge’s recommendation to be proper. Accordingly,
the Report and Recommendation is incorporated herein by reference. Plaintiff’s Motion for
Temporary Restraining Order (ECF No. 3) is DENIED and the instant action is DISMISSED
without prejudice and without service of process in accordance with the Report and
Recommendation issued in this case. (ECF No. 16.).
IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge
November 7, 2012
Spartanburg, South Carolina
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