Davis v. McElveen et al

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATION, declining the Report & Recommendation, giving plaintiff 30 days in which to amend the complaint. This matter is returned to the magistrate judge for further proceedings, for 22 Report and Recommendation, Judge Magistrate Judge Joseph R McCrorey added. ( Amended Complaint due by 10/15/2013.) Signed by Honorable Joseph F Anderson, Jr on September 11, 2013. Motions referred to Joseph R McCrorey.(kbos)

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

Terry Donald Davis, Jr. #197349,

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Plaintiff,
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v.
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Rhonda McElveen; Lisa H. Davenport;
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Cheri L. Young; Aimee J. Zmroczek;
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Gregory Culp, Individual Capacity;
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Barry Thompson; Lauran McCaan;
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J. William Weeks; Mary S. Williams;
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and Rodney Pruitt,
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Defendants.
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______________________________________ )

C/A No. 1:12-3056-JFA-JRM

ORDER

The pro se plaintiff, Terry Donald Davis, is a state inmate with the South Carolina
Department of Corrections (SCDC). He brings this action pursuant to 42 U.S.C. § 19831
claiming various wrongdoings by the defendants involved his criminal and post-conviction
proceedings in state court. The plaintiff seeks monetary damages, and declaratory and
injunctive relief.
The Magistrate Judge assigned to this action2 has prepared a Report and
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The plaintiff has filed this action in forma pauperis under 28 U.S.C. § 1915.

2

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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Recommendation and opines that the complaint should be dismissed. The Report sets forth
in detail the relevant facts and standards of law on this matter, and the court incorporates
such without a recitation.
The plaintiff was advised of his right to file objections to the Report and
Recommendation and he has timely done so. The plaintiff’s objections consist of a one-page
pleading requesting permission to amend his complaint.
The Magistrate Judge correctly suggests that to the extent plaintiff seeks to recover
damages and injunctive for alleged constitutional violations that led to his convictions, his
complaint is subject to summary dismissal under the Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477 (1994).
The Magistrate Judge also opines that the plaintiff had failed to set forth adequate
factual allegations of specific wrongdoing attributable to defendants Culp, Thompson,
McCaan, Williams, Weeks, and Pruitt. The Magistrate Judge concludes that the complaint
is both frivolous and fails to state a claim on which relief may be granted as to those
defendants.
As to defendants Williams and Weeks, the Magistrate Judge suggests that there are
no claims against these defendants and they are entitled to immunity from this suit.
Likewise, defendant McElveen is immune from suit for money damages under the doctrine
of quasi-judicial immunity and any claims based upon the doctrine of respondeat superior due
not give rise to a § 1983 claim.

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Additionally, the Magistrate Judge properly opines that purely private conduct such
as that alleged in this case against defendant Zmroczek, Thompson, and McCaan, are not
actionable under § 1983 or the Fourteenth Amendment.
Finally, the plaintiff is not entitled to a declaratory judgment that the defendants’
alleged past behavior is a violation of his rights.
In his objection memorandum, the plaintiff requests that the court allow him leave to
clarify his initial complaint. Applying the requisite liberal standard to the plaintiff’s pro se
objections, this court construes plaintiff’s objections as a motion to amend his complaint
pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. Rule 15(a) declares that
leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a)(2). “If
the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits.” Pittson Co. v.
United States, 199 F.3d 694, 705 (4th Cir. 1999). “In the absence of any apparent or declared
reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be ‘freely given.’ “ Id.; see also Gordon v. Leeke,
574 F.2d 1147, 1152–53 (4th Cir.1978) (“What might be a meritorious claim on the part of
a pro se litigant unversed in the law should not be defeated without affording the pleader a
reasonable opportunity to articulate his cause of action.”).

3

In light of the liberal construction accorded to pro se pleadings, the court concludes
that plaintiff’s objections should be construed as a motion to amend the complaint, and
should be granted as such.
After a careful review of the record, the applicable law, and in light of the this court’s
grant of the plaintiff’s motion to amend his complaint, the court respectfully declines to adopt
the Magistrate Judge’s Report and Recommendation.
Accordingly, the plaintiff shall be granted leave to amend his complaint. Such
amended complaint must be filed within thirty (30) days of the date of this order. The Clerk
shall return this matter to Magistrate Judge for further proceedings.
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

September 11, 2013
Columbia, South Carolina

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