Smyth v. Stirling

Filing 15

ORDER declining to adopt the 9 Report and Recommendation, granting Plaintiff leave to file an amended complaint within fifteen (15) days of the date of this Order, and recommitting this matter to the Magistrate Judge for fu rther pretrial handling and screening of any amended complaint. (Amended Complaint due by 7/11/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) Magistrate Judge Paige J. Gossett added. Signed by Honorable R. Bryan Harwell on 6/27/2018. (bgoo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Keith Adger Smyth,

)
)
Plaintiff,
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v.
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SCDC Director Bryan Stirling,
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)
Defendant.
)
______________________________)

Civil Action No.: 0:18-cv-01217-RBH

ORDER

Plaintiff Keith Adger Smyth, a state prisoner proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983. See ECF No. 1. The matter is before the Court for consideration of Plaintiff’s
objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Paige J.
Gossett, who recommends summarily dismissing Plaintiff’s complaint without prejudice.1 See ECF
Nos. 9 & 11.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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); Fed. R. Civ. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when

1

The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.).

a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
Discussion2
In his complaint, Plaintiff sues SCDC3 Director Bryan Stirling (the sole defendant) in his official
capacity, generally alleging the conditions of the prison worsen when there is a “lockdown.” See ECF
No. 1. The Magistrate Judge recommends summarily dismissing Plaintiff’s complaint pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b) because it seeks monetary relief against a defendant who is
immune from such relief and because it fails to state a claim upon which relief may be granted. See R
& R at pp. 2–5. Plaintiff has filed objections asserting “[t]his complaint is true . . ., and I haven’t
fail[ed] to state a claim,” and asking the Court “not to dismiss my lawsuit.” See ECF No. 11. He has
also submitted several inmate grievance forms with his objections. See ECF No. 11-1.
Initially, the Court notes that Plaintiff does not object to the Magistrate Judge’s conclusion that
Defendant Stirling is immune from suit for damages under the Eleventh Amendment, and that he does
not specifically object to the Magistrate Judge’s conclusion that he fails to state an Eighth Amendment
claim. The Court reiterates that absent a specific objection, it need only review the R & R for clear error

2

The R & R summarizes the factual and procedural background of this case, as well as the applicable legal
standards.
3

South Carolina Department of Corrections.

2

and need not explain its reason for adopting the R & R. See Diamond, 416 F.3d at 315; Camby, 718
F.2d at 199–200. Nevertheless, the Court has conducted a de novo review of the R & R and agrees with
the Magistrate Judge’s conclusions.
However, the Court notes that the Magistrate Judge identified deficiencies that Plaintiff could
potentially remedy by filing an amended complaint, and that Plaintiff has provided more particularized
information with his objections (by way of the inmate grievance forms, some of which are dated after
the date his complaint was signed). Accordingly, the Court will provide Plaintiff an opportunity to
amend his complaint before dismissing this action.4 See generally Fed. R. Civ. P. 15(a)(2) (“The court
should freely give leave [to amend] when justice so requires.”); see, e.g., Breyan v. All Med. Staff, 691
F. App’x 102 (4th Cir. 2017) (noting the pro se plaintiff failed to name a proper defendant in his § 1983
complaint” and “remand[ing] the case to the district court with instructions to allow [the plaintiff] to
amend his complaint” (citing Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623–24 (4th Cir.
2015), and Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066–67 (4th Cir.
1993))). To comply with the Federal Rules of Civil Procedure, any amended complaint must
identify the legal claims that Plaintiff asserts against any defendant and the factual basis for
holding any such defendant liable. Failure to do so may result in the case being dismissed.
Conclusion
For the foregoing reasons, the Court DECLINES to adopt the R & R [ECF No. 9] at this time
and GRANTS Plaintiff leave to file an amended complaint. Plaintiff may file any amended
complaint within fifteen (15) days of the date of this Order. The Court RECOMMITS this matter
to the Magistrate Judge for further pretrial handling and screening of any amended complaint.
4

The Magistrate Judge did not provide Plaintiff an opportunity to amend his complaint.

3

IT IS SO ORDERED.
Florence, South Carolina
June 27, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

4