Tolliver v. Spartanburg County Detention Facility
ORDER granting 11 Motion to Amend and 13 Motion to Amend. Plaintiff is directed to file an amended complaint on or before February 17, 2017. If Plaintiff fails to file an amended complaint by this date, his claim will b e subject to dismissal. The court recommits this matter to the Magistrate Judge for further proceedings consistent with the ruling in this order. Signed by Honorable J Michelle Childs on 2/2/2017. Motions referred to Shiva V Hodges.(mwal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jeffery Dale Tolliver, #13-12613,
Spartanburg County Detention Facility,
Civil Action No. 1:16-cv-03889-JMC
Plaintiff, proceeding pro se and in forma pauperis, brought this action (ECF No. 1) seeking
relief pursuant to 42 U.S.C. § 1983. This matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”) (ECF No. 7), filed on December 19, 2016,
recommending that this action be dismissed without prejudice and without issuance and service of
process. The Report sets forth in detail the relevant facts and legal standards on this matter which
the court interprets herein without a recitation.
I. STANDARD OF REVIEW
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02(B)(2)(e) for the District of South Carolina. “The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the final
determination.” Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing Matthews v.
Weber, 423 U.S. 261, 271 (1976)). Moreover, the court is charged with making a de novo
determination of those portions of a report and recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole or in part, a magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Objections
to a report and recommendation must specifically identify portions of the report and the basis for
those objections. Fed. R. Civ. P. 72(b). “[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, 316 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s
Plaintiff was notified of his right to file objections to the Report within fourteen days of
the date of service of the Report. (ECF No. 7 at 5.) Plaintiff filed untimely objections to the Report
on January 6, 2017. (ECF No. 10.) In his objections, Plaintiff apologizes to the court for the
delayed filing and alleges that he was not properly served with the Report or notified of his right
to file objections until January 3, 2017. (ECF No. 10 at 1.) Assuming this allegation is true,
Plaintiff promptly filed objections within three days of receiving the Report and notice of his right
to file objections. 1 Therefore, the court assumes that Plaintiff’s objections were timely filed.
In his objections, Plaintiff explains that he named Spartanburg County Detention Facility
(“SCDF”) as the Defendant in this action because he could not name specific individuals at SCDF
responsible for his injuries. Specifically, Plaintiff states that “given the scope of this Complaint
which covers ‘all divisions’ and ‘branches’ of this department — it is impossible to name the
persons amenable under suit individually.” (ECF No. 10 at 3). Despite this objection, Plaintiff
nevertheless fails to establish that SCDF is a “person” amenable to suit under 42 U.S.C. § 1983.
See Nelson v. Lexington Cnty. Det. Ctr., No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C.
May 26, 2011).
Pro se pleadings are accorded liberal construction and are held to a less stringent standard than
those drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Additionally, the court
assumes that a plaintiff’s allegations are true when evaluating pro se pleadings. See Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975).
However, in addition to his objections, Plaintiff contemporaneously filed an Amendment
to Claim (ECF No. 10) requesting that the court name two individual prison officers amenable to
suit under 42 U.S.C. § 1983 as Co-Defendants instead of SCDF. On January 17, 2017, Plaintiff
filed a subsequent Amendment/Addition to Claim (ECF No. 13) requesting again that the court
name two individual prison officers as Co-Defendants instead of SCDF. 2 The court construes the
Amended Complaint (ECF No. 10) and Amendment/Addition to Claim (ECF No. 13)
conjunctively as a Motion to Amend and supplemental objection to the Report. See Franklin v.
Alford, No. 1:12-CV-393, 2013 WL 1984367 at *1, (E.D. Tex. May 13, 2013).
The court may grant a party leave to amend its pleading when justice so requires. Fed. R.
Civ. P. 15(a)(2). Furthermore, a motion to amend should be denied only where it would be
prejudicial, there has been bad faith, or the amendment would be futile. Nourison Rug Corp. v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77
(4th Cir. 2001)). The district court has the sound discretion to grant or deny a party leave to amend.
Sandcrest Outpatient Servs., P.A. v. Cumberland Cnty. Hosp. Sys., Inc., 853 F.2d 1139, 1148 (4th
Cir. 1988). However, “it is well-settled that ‘in the absence of any apparent or declared reason . . .
the leave sought should, as the rules require, be freely given.’” National Bank of Washington v.
Pearson, 863 F.2d 322, 327 (4th Cir. 1988) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
The court has conducted a de novo review of Plaintiff’s Motion to Amend in relation to the
pleadings and applicable law. After careful consideration, the court concludes that pro se
Plaintiff’s amendment naming two individual prison officers as Co-Defendants instead of SCDF
is neither prejudicial, futile or made in bad faith. Furthermore, the naming of individual persons
Plaintiff also filed a document titled Motion for Summary Judgment (ECF No. 12) in which he asked
the court to deliver any filed summary judgment documents to a specified address. The court hereby
DENIES Plaintiff’s Motion for Summary Judgment. However, the court assures that Plaintiff will be
properly notified upon Defendant SCDF’s filing of summary judgment documents with the court.
amenable to suit under 42 U.S.C. § 1983 may transform Plaintiff’s Complaint into a cognizable
claim that would survive dismissal. Therefore, justice requires that the court grant Plaintiff leave
to amend his complaint.
For the reasons discussed herein, the court OVERRULES Plaintiff’s supplemental
objection (ECF No. 10) and GRANTS Plaintiff’s motions for leave to amend his complaint (ECF
Nos. 11, 13). Plaintiff is DIRECTED to file an amended complaint, bringing it into proper form
in accordance with Local Civ. R. 83.VIII.01 (D.S.C.) 3 and incorporating all the allegations he
wishes to pursue in this matter, on or before February 17, 2017. If Plaintiff fails to file an
amended complaint by this date, his claim will be subject to dismissal. The court RECOMMITS
this matter to the Magistrate Judge for further proceedings consistent with the rulings in this order.
IT IS SO ORDERED.
United States District Judge
February 2, 2017
Columbia, South Carolina
The Clerk’s Office is directed to provide Plaintiff with the proper form.
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