Wells v. SCDF Employees et al

Filing 20

ORDER adopting 15 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks; denying 17 Motion to Amend/Correct. It is therefore ORDERED that the Plaintiff's Complaint is DISMISSED without issuance and service of process. Signed by Honorable Timothy M Cain on 1/28/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Ray Edward Wells,
Plaintiff,
vs.
SCDF Employees; Warden Larry W.
Powers; Dr. Salvatore Bianco; Medical
Staff, individually and in their official
capacities,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 2:13-3061-TMC

ORDER

Plaintiff, Ray Edward Wells, a former state prisoner proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the
court is the magistrate judge’s Report and Recommendation (“Report”), recommending that
Plaintiff’s Complaint be summarily dismissed without prejudice and without issuance and
service of process. (ECF No. 15). Rather than file objections, Plaintiff has filed a motion to
amend his complaint. (ECF No. 17).
In the absence of objections, this court is not required to provide an explanation for
adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in 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).

As noted above, rather than file specific objections to the Report, Plaintiff has filed a
motion to amend his complaint. However, even if the court were to construe Plaintiff’s motion
to amend as objections to the Report, “[w]hen a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed findings
and recommendations,” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982), the court reviews
the Report only for clear error, Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005). The Court finds that in this case any objections are nonspecific, unrelated to the
dispositive portions of the magistrate judge's Report, and repetitive since they merely restate
Plaintiff's claims. The court has thoroughly reviewed the Report and Plaintiff’s motion and finds
no reason to deviate from the Report’s recommended disposition.
Moreover, reviewing Plaintiff’s motion to amend and liberally construing it, the court
finds that granting Plaintiff's motion to amend would be futile. See In re PEC Solutions, Inc. Sec.
Litig., 418 F.3d 379 (4th Cir. 2005) (“Leave to amend need not be given when amendment
would be futile.”).1

The claims Plaintiff raises in his proposed Amended Complaint are

duplicative of the claims he brought in Wells v. SCDF Employees, et al., C/A No. 2:10-

1

Fed.R.Civ.P. 15(a)(1) provides, in relevant part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive pleading.” In Galustian v. Peter, 591 F.3d
724, 730 (4th Cir. 2010), a defamation action, the Fourth Circuit Court of Appeals held that a plaintiff's
aright to amend his complaint once under Fed.R.Civ.P. 15(a) is absolute, irrespective of whether the
amendment would prove futile. Id. The circuits are split on whether a plaintiff who is proceeding in
forma pauperis (“IFP”) under 28 U.S.C. § 1915 has an absolute right to amend. Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1024 (7th Cir. 2013) (discussing split and cases). The Fourth Circuit has not
addressed this issue in a published opinion. However, recently, in an unpublished per curiam decision,
the Fourth Circuit affirmed a district court’s decision addressing this issue. Rutledge v. Town of
Chatham, C/A No. 10-2310414 F.App’x 568 (2011). In Rutledge, 2010 WL 4791840 (W.D.Va. 2010),
the district court distinguished the holding in Galustian based upon the fact that the plaintiff was
proceeding IFP. The district court noted that § 1915 allows the court to exercise a great deal of control
over the claims of a plaintiff who is proceeding IFP, and the court may at any time pre-screen and dismiss
claims that are frivolous or fail to state a claim. The court finds the analysis and holding set forth in
Rutledge persuasive.
2

3111-CMC-BHH (D.S.C.), which was dismissed with prejudice. Accordingly, the motion to
amend is denied.
Therefore, the court adopts the Magistrate Judge's Report (ECF No. 9) and incorporates it
herein. It is therefore ORDERED that the Plaintiff's Complaint is DISMISSED without
issuance and service of process. Additionally, Plaintiff’s Motion to Amend (ECF No. 17) is
DENIED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge

January 28, 2014
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

3