Bryan v. Defense Technology U.S. et al

Filing 96

ORDER RULING ON REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED that the Magistrate Judge's Report 80 is ACCEPTED and Plaintiff's objections 84 are OVERRULED. Accordingly, as recommended in the Report, Plaintiff& #039;s motions to remand and to amend the complaint are DENIED. Defendant Basinger is GRANTED summary judgment and Defendants Holmes, Doe, the SCDC, and the U.S. Attorney are DISMISSED for failure to effect service of process pursuant to Fed. R. Civ. P. 4(m). This Court DECLINES to exercise jurisdiction over Plaintiff's remaining state law claims pursuant to 28 U.S.C. § 1367(c) and this matter is DISMISSED in its entirety. As noted in the Report, in light of the Court's acceptance of the Report, all other pending motions are now MOOT. IT IS SO ORDERED. Signed by Honorable Terry L Wooten on 9/23/2011. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

T. Terell Bryan,

)
)
Plaintiff,
)
)
-versus)
)
Defense Technology, U.S., U.S. Attorney,
)
Linda Holmes, Darrell A. Basinger, Jane Doe,
)
South Carolina Department of Corrections,
)
)
Defendants. )
__________________________________________)

C.A. No. 1:10-cv-02834-TLW

ORDER

The Plaintiff has brought this pro se action against the Defendants under Title 42, United
States Code, Section 1983. This matter is now before the undersigned for review of the Report and
Recommendation (“the Report”) filed by United States Magistrate Judge Shiva V. Hodges, to whom
this case had previously been assigned pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)
(D.S.C.).1 In her Report, Magistrate Judge Hodges recommends that Plaintiff’s motions to remand
and to amend the complaint be denied. (Doc. # 80). Additionally, it is recommended that Defendant
Basinger be granted summary judgment and that Defendants Holmes, Doe, the SCDC, and the U.S.
Attorney be dismissed for failure to effect service of process pursuant to Fed. R. Civ. P. 4(m).2 Id.

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Plaintiff has filed a “Motion to Waive Magistrate.” Defendants filed a response in
opposition to this motion on September 1, 2011. Plaintiff filed a Reply on September 16, 2011.
(Doc. # 94). After careful review and consideration, this motion is DENIED. (Doc. # 82).
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The Report notes, and this Court agrees that even in the event Plaintiff provides
documentation showing he effected service of process, Plaintiff has not stated a claim for which
relief may be granted against Holmes, as Plaintiff has no constitutional right to a grievance
process. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Additionally, the SCDC is not a “person”
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Finally, it is recommended that the district judge decline to exercise jurisdiction over Plaintiff’s
remaining state law claims pursuant to 28 U.S.C. § 1367(c) and that this matter be dismissed in its
entirety. Id. The Report notes that if this recommendation is accepted, all other pending motions
will be moot. Id. The Plaintiff has filed objections to the Report. (Doc. # 84).
In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections. . . . The Court is not bound by the recommendation of the
magistrate judge but, instead, retains responsibility for the final determination. The
Court is required to make a de novo determination of those portions of the report or
specified findings or recommendation as to which an objection is made. However,
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the Report and
Recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court's review of the Report thus depends on whether or not
objections have been filed, in either case, the Court is free, after review, to accept,
reject, or modify any of the magistrate judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of this standard, the Court has reviewed, de novo, the Report and the objections
thereto. The Court accepts the Report.
THEREFORE, IT IS HEREBY ORDERED that the Magistrate Judge’s Report is
ACCEPTED (Doc. # 80) and Plaintiff’s objections are OVERRULED (Doc. # 84). Accordingly,
as recommended in the Report, Plaintiff’s motions to remand and to amend the complaint are
DENIED; Defendant Basinger is GRANTED summary judgment and Defendants Holmes, Doe, the
SCDC, and the U.S. Attorney are DISMISSED for failure to effect service of process pursuant to
Fed. R. Civ. P. 4(m). This Court DECLINES to exercise jurisdiction over Plaintiff’s remaining
state law claims pursuant to 28 U.S.C. § 1367(c) and this matter is DISMISSED in its entirety. As

subject to suit pursuant to 28 U.S.C. § 1983.
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noted in the Report, in light of this Court’s acceptance of the Report, all other pending motions are
now MOOT.
IT IS SO ORDERED.
s/ Terry L. Wooten
TERRY L. WOOTEN
UNITED STATES DISTRICT JUDGE

September 23, 2011
Florence, South Carolina

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