Rahim v. South Carolina Department of Probation, Parole and Pardon Services, The

Filing 21

ORDER adopting in part the 16 Report and Recommendation to the extent it recommends dismissing Plaintiff's Complaint and rejecting in part the Report and Recommendation to the extent that it recommends dismissing the Complaint without prejudice. Accordingly, the court dismisses the Complaint with prejudice and without issuance and service of process. Signed by Honorable J. Michelle Childs on 6/6/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Dawud Rahim,

)
)
Plaintiff,
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v.
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The South Carolina Department of Probation, )
Parole and Pardon Services,
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Defendant.
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____________________________________ )

Civil Action No.: 0:16-02440-JMC

ORDER

This matter is before the court upon review of Magistrate Judge Paige J. Gossett’s Report
and Recommendation (“Report”), filed on August 29, 2016, recommending that Plaintiff Dawud
Rahim’s pro se 42 U.S.C. § 1983 action be summarily dismissed for failure to sue a party that is
amenable to suit. (ECF No. 16.) This review considers Plaintiff’s objections to the Magistrate
Judge’s Report, filed September 19, 2016. (ECF No. 18.)
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which 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 is charged with making a de novo determination of those portions of the
Report to which specific objections are made.
Plaintiff was advised of the right to file objections to the Report. (ECF No. 16.) In his
timely Response to the Report, Plaintiff specifically objected to the Magistrate Judge’s
recommendation that the Complaint be dismissed for lack of jurisdiction. (ECF No. 18 at 4.)
The court has conducted a de novo review of the issues in this case and concludes that the

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Magistrate Judge has properly applied the applicable law. The court specifically reviewed those
conclusions of the Magistrate Judge which were mentioned in Plaintiff’s objections.
The Magistrate Judge properly determined that this court should dismiss Plaintiff’s
Complaint because this court does not have jurisdiction over a suit against a state agency. (ECF
No. 16 at 3-4.) The Eleventh Amendment bars suits by citizens against non-consenting states
brought either in state or federal court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999). Such
immunity extends to arms of the state, including a state’s agencies, instrumentalities, and
employees. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been
settled that [the Eleventh Amendment’s] reference to ‘actions against one of the United
States encompasses not only actions in which a State is actually named as the defendant, but also
certain actions against state agents and state instrumentalities”). Unless a state has consented to
suit or Congress has waived a State’s immunity pursuant to the Fourteenth Amendment, a state
(and its agencies) may not be sued in federal or state court. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 66 (1989). Congress has not abrogated the states’ sovereign immunity under §
1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in
federal district court. S.C. Code Ann. § 15-78-20(e) (2017). The South Carolina Department of
Probation, Parole, and Pardon Services is a State agency. S.C. Code Ann. § 24-21-10 (2017); see
Graham v. Webber, 2016 U.S. Dist. LEXIS 12290, at *10-11 (D.S.C. Jan. 7, 2016) (holding that
members of the South Carolina Department of Probation, Parole, and Pardon Services are
entitled to Eleventh Amendment immunity).
Plaintiff specifically objected to the Magistrate Judge’s recommendation that the
Complaint be dismissed for jurisdictional reasons. (ECF No. 18 at 4.) Defendant cites Harlow v.
Fitzgerald, 457 U.S 800 (1982), for the proposition that the Eleventh Amendment does not bar a

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state agency from being sued. (ECF No. 18 at 4.) However, Harlow does not involve a state
agency, but instead involves a claim for qualified immunity on the part of top White House aides
from the Nixon administration. Harlow, 457 U.S. at 802. Defendant has thus not cited any
relevant legal authority to contradict the Magistrate Judge’s conclusions. As the court does not
have jurisdiction over Defendant, the court agrees with the Magistrate Judge and concludes that
the Complaint should be dismissed.1
Based on the aforementioned reasons and a thorough review of the Magistrate Judge’s
Report, the court ADOPTS IN PART the Report (ECF No. 16) to the extent that it recommends
dismissing Plaintiff’s Complaint and REJECTS IN PART the Report to the extent that it
recommends dismissing the Complaint without prejudice and without issuance and service of
process.2 Accordingly, the court DISMISSES the Complaint (ECF No. 1) with prejudice and
without issuance and service of process.
IT IS SO ORDERED.

United States District Judge
June 6, 2017
Columbia, South Carolina 

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The court notes that Plaintiff raised other substantive claims in his Complaint and that he
specifically objected to the Magistrate Judge’s analysis of those claims. However, as the court
does not have jurisdiction over Defendant, the court need not analyze any other substantive
claims. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 778-79
(2000) (“[I]f there is no jurisdiction, there is no authority to sit in judgment of anything else.”)
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The court notes that cases dismissed for lack of subject matter jurisdiction usually do so with
prejudice, as plaintiffs cannot redraft their complaints to overcome sovereign immunity. See
Cunningham v. General Dynamics Info. Tech., Inc., 2017 U.S. Dist. LEXIS 66094, at *17-18
(E.D. Va. May 1, 2017) (collecting cases).

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