Holcomb v. Greenville County Detention Center

Filing 12

ORDER ADOPTING 8 REPORT AND RECOMMENDATION. Plaintiff's action againstDefendant is dismissed without prejudice and without issuance and service of process. The case is remanded to the Magistrate Judge to consider Plaintiff's motion to amend his complaint and to conduct any other necessary proceedings.Judge Magistrate Judge Shiva V Hodges added. Signed by Honorable Mary G Lewis on 10/2/2014. Motions referred to Shiva V Hodges.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
RABBI DEAN ALTON HOLCOMB,
Plaintiff,
vs.

GREENVILLE COUNTY
DETENTION CENTER,
Defendant.

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§ CIVIL ACTION NO. 1:14-3477-MGL-SVH
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ORDER ADOPTING THE REPORT AND RECOMMENDATION,
DISMISSING THE ACTION AGAINST DEFENDANT WITHOUT PREJUDICE,
AND REMANDING THE MATTER TO THE MAGISTRATE JUDGE
FOR FURTHER PROCEEDINGS
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that Plaintiff’s action be dismissed without prejudice and without
issuance and service of process. The Report was made in accordance with 28 U.S.C. § 636 and Local
Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report 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 with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on September 2, 2014, but Plaintiff failed to file any
objections. “[I]n 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.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Moreover, a failure to
object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
According to Plaintiff’s complaint, Defendant “has willfully and illegally denied [him] [his]
requested kosher diet” and “has willfully and illegally denied [him] [his] requests for access or
assistance to legal research materials.” Complaint 4. Plaintiff seeks both injunctive and monetary
relief. Id. at 5-6. But, as the Magistrate Judge noted, “[i]t is well-settled that only persons may act
under color of state law; therefore, a defendant in a § 1983 action must qualify as a person.” Report
3. Because Defendant is an inanimate object and, thus, does not qualify as a “person” under § 1983,
summary dismissal of the complaint against Defendant is proper.
In lieu of objections, Plaintiff submitted a motion to amend his complaint. The Court will
remand the case to the Magistrate Judge for consideration of Plaintiff’s motion to amend. This
remand, of course, is caused by no fault of the Magistrate Judge.
After a thorough review of the Report and the record in this case pursuant to the standards
set forth above, the Court adopts the Report to the extent that it does not contradict this Order and
incorporates it herein. Therefore, it is the judgment of the Court that Plaintiff’s action against
Defendant is DISMISSED WITHOUT PREJUDICE and without issuance and service of process.
The case is hereby REMANDED to the Magistrate Judge to consider Plaintiff’s motion to amend
his complaint and to conduct any other necessary proceedings.

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IT IS SO ORDERED.
Signed this 2nd day of October, 2014, in Spartanburg, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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