Schaap v. Clary et al
ORDER adopting 10 Report and Recommendation, dismissing the action without prejudice. Signed by Honorable Cameron McGowan Currie on 1/23/2017. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Civil Action No. 0:16-cv-2778-CMC
Susan Stokley Clary; Susan Stokley Clary, in
her official capacity as clerk of the Supreme
Court; Supreme Court of Kentucky;
Commonwealth of Kentucky,
This matter is before the court on Plaintiff’s complaint alleging that Defendants are
conspiring to deprive him of due process because they have failed to rule on an appeal he has
pending before the Supreme Court of Kentucky ECF No. 1. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02 (B)(2), D.S.C., this matter was referred to United States
Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation
(“Report”). On September 30, 2016, the Magistrate Judge issued a Report recommending that this
matter be summarily dismissed without prejudice, and without issuance and service of process.
ECF No. 10. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing
objections to the Report and the serious consequences if he failed to do so. Plaintiff filed initial
objections on October 14, 2016, but also requested an extension of time to file further objections.
ECF No. 12. After the extension of time, Plaintiff filed supplemental objections to the Report on
November 15, 2016. ECF No. 17.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection
is made. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After considering the record, the applicable law, the Report and Recommendation of the
Magistrate Judge and Plaintiff’s objections, the court agrees with the Report’s recommendation
that the complaint be dismissed based on immunity and futility. The court has considered
Plaintiff’s objections; however, they are insufficient to overcome immunity for Defendants
Commonwealth and Supreme Court of Kentucky, as well as Defendant Clary in her official
capacity. As to Defendant Clary in her individual capacity, Plaintiff has failed to allege facts
sufficient to explain how Clary’s purported inaction deprived him of due process. Plaintiff relies
on conclusory allegations that the facts and docket “speak for themselves” and that there is “no
other reasonable conclusion” other than the clerk committing fraud in refusing to submit his
motions to the court. See ECF No. 17 at 6-7; ECF No. 1 at ¶¶ 24-25. However, this is insufficient
to explain how Plaintiff was deprived of due process. Accordingly, the court adopts the Report by
reference in this Order. Plaintiff’s Complaint is hereby dismissed without prejudice.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
January 23, 2017
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