Gibson v. South Carolina Dept of Mental Health et al

Filing 20

ORDER AND OPINION adopting 12 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks. It is therefore ORDERED that the complaint in this action is dismissed without prejudice and without issuance and service pr ocess as against Defendants Department of Public Safety and South Carolina Department of Public Health and that the matter be returned to the Magistrate Judge for further pretrial proceedings. Plaintiff is hereby directed to file an amended complaint within thirty days of entry of this order striking the South Carolina Department of Mental Health and the South Carolina Department of Public Safety as Defendants in the body of the amended complaint as well as the caption of the amended complaint. Signed by Honorable Mary G Lewis on 4/7/2014.(ssam, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
James Gordon Gibson,
Plaintiff,
vs.
South Carolina Dept. of Mental Health; Director
Holly Scaturo; Sherrie Winston-Wood; Cynthia
Helff; Sheila Lindsay; Chris Jenkins; Dept. of
Public Safety; PSO Lt. Jacobs; PSO Sgt. Larry
Werts; PSO Benjamin Williams; PSO FNU
Washington; PSO Jarvis Borum; and PSO
Russell Gaithers,
Defendants.
_______________________________________

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ORDER AND OPINION
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Plaintiff James Gordon Gibson, (“Plaintiff”), proceeding pro se and in forma pauperis,
brought this civil action pursuant to 42 U.S.C. § 1983 seeking the right to have legal and religious
material, and to be safe from actual and/or threat of physical assault, the return to his former job
position, and back pay. (ECF. No. 1).
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South
Carolina, this matter was referred to United States Magistrate Judge Bruce Howe Hendricks for
pretrial handling. The matter is now before this Court for review of the Report and Recommendation
(“Report”) issued by the Magistrate Judge on March 6, 2014. (ECF No. 12). In her Report, the
Magistrate Judge recommends that the case be dismissed without prejudice and without issuance and
service of process as against the following Defendants: Department of Public Safety and South
Carolina Department of Public Health. Id. Objections to the Report were due by March 24, 2014.
Plaintiff has filed no Objections.

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.
See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). 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).
The record reflects that Plaintiff filed an amended complaint (ECF No. 14) after Magistrate
Judge Hendricks filed her Report and Recommendation. In the caption of the amended complaint,
Plaintiff appears to now not seek relief against the South Carolina Department of Mental Health and
the South Carolina Department of Public Safety. However, Plaintiff continues to reference both in
the body of his complaint. As such, Plaintiff is hereby directed to file an amended complaint within
thirty days of entry of this order striking the South Carolina Department of Mental Health and the
South Carolina Department of Public Safety as Defendants in the body of the amended complaint
as well as the caption of the amended complaint.
After a careful review of the record, the applicable law, and the Report of the Magistrate
Judge, the Court finds no clear error. Accordingly, the Court ACCEPTS and incorporates the
Report, (ECF No. 12), by reference into this Order. It is therefore ORDERED that the complaint
in this action is dismissed without prejudice and without issuance and service process as against
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Defendants Department of Public Safety and South Carolina Department of Public Health and that
the matter be returned to the Magistrate Judge for further pretrial proceedings.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
April 7, 2014
Spartanburg, South Carolina

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