Gathers v. Rock Hill Police, City of et al

Filing 11

ORDER adopting 7 Report and Recommendation. Plaintiff's claims against Defendants Dillingham, Kendree, York County, City of Rock Hill Police Department, City of Rock Hill Municipal Court, and the York County Public De fender are dismissed without prejudice and without issuance and service of process. The case will proceed as to Plaintiff's claims against Defendants Thomas, Boiling, and Popov, and is re-referred to the Magistrate Judge for further pre-trial proceedings. Signed by Honorable Cameron McGowan Currie on 4/26/2018. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Travis Gathers, #1505721,

Civil Action No. 0:18-cv-711-CMC

Plaintiff,
vs.

OPINION AND ORDER

Ryan Thomas, Individually; Luke Boiling,
Individually; Daniel Popov, Individually;
Paul L. Dillingham; Michael Kendree; York
County, Servants, Agents, and Employees;
City of Rock Hill Police Department,
Servants, Agents, and Employees; City of
Rock Hill Municipal Court, Servants,
Agents, and Employees; and York County
Public Defender, Servants, Agents, and
Employees,
Defendants.
This matter is before the court on Plaintiff’s Complaint pursuant to 42 U.S.C. § 1983. ECF
No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), D.S.C., the
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings.
On April 4, 2018, the Magistrate Judge issued a Report recommending summary dismissal without
prejudice and without issuance and service of process as to the claims against Defendants
Dillingham, Kendree, York County, City of Rock Hill Police Department, City of Rock Hill
Municipal Court, and the York County Public Defender. ECF No. 7. 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 did not file objections and the time for doing
so has passed.

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). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.”) (citation omitted).
After considering the record, the applicable law, and the Report and Recommendation of
the Magistrate Judge, the court agrees with the Report’s recommendation certain Defendants be
dismissed. It does not appear Plaintiff would be able to amend his Complaint to allege any facts
that would allow him to sue these Defendants. Accordingly, the court adopts the Report by
reference in this Order. Plaintiff’s claims against Defendants Dillingham, Kendree1, York County,

1

Defendants Dillingham and Kendree are identified by Plaintiff as the City Attorney for Rock Hill
and the County Attorney for the County of York, respectively. To the extent the facts alleged by
Plaintiff against the Rock Hill Municipal Court or York County could be construed as being
alleged against these Defendants, the court notes in the alternative they are entitled to prosecutorial
immunity. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (“Solicitors are immune from
§ 1983 claims where their alleged actions are intimately associated with the judicial phase of the
criminal process.”).
2

City of Rock Hill Police Department, City of Rock Hill Municipal Court, and the York County
Public Defender are dismissed without prejudice and without issuance and service of process. The
case will proceed as to Plaintiff’s claims against Defendants Thomas, Boiling, and Popov, and is
re-referred to the Magistrate Judge for further pre-trial proceedings.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
April 26, 2018

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