Al-Haqq v. Worrick et al

Filing 44

ORDER adopting 36 Report and Recommendation of Magistrate Judge Wallace W Dixon; granting in part and denying in part 20 Motion to Dismiss. All defendants in this action, with the exception of defendant Corporal Marvin Bryant, are dismissed. The Clerk is directed to refer this matter back to the Magistrate Judge so that the action may continue as to defendant Bryant in his individual capacity only. Signed by Honorable Joseph F Anderson, Jr on 9/30/2014.(ssam, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Bilal A. Al-Haqq, #126806,
Plaintiff,
vs.
Major Walter Worrick; Ernest Rome, DHO;
Ms. V. Jones, Inmate Representative; Ms.
Marilyn Smart, Grievance Coordinator; Ms. C.
Smith, Caseworker; Ms. Edith Wetherbee,
DHO Recorder; and Cpl. Marvin Bryant, in
their individual and official capacities,
Defendants.
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ORDER
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The pro se plaintiff, Bilal A. Al-Haqq, brings this action pursuant to 42 U.S.C. § 1983
raising various allegations that his constitutional and statutory rights have been violated in
connection with a prison disciplinary hearing. He seeks injunctive relief and monetary
damages.
The Magistrate Judge1 assigned to this action has prepared a thorough Report and
Recommendation wherein he suggests that defendants’ motion to dismiss should be granted
in part. The Report sets forth in detail the relevant facts and standards of law on this matter,
and the court incorporates such without a recitation.

1

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 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. 28 U.S.C. § 636(b)(1).

1

The Magistrate Judge issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975) notifying plaintiff of the summary dismissal procedure and possible
consequences if he failed to adequately respond to the motion to dismiss. The plaintiff
responded to the motion after being granted an extension of time.
The plaintiff was advised of his right to file objections to the Report and
Recommendation which was docketed on September 3, 2014. However, the plaintiff has not
filed objections and the time in which to do so has expired. In the absence of specific
objections to the Report of the Magistrate Judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983).
The defendants have moved to dismiss this case pursuant to Fed. R. Civ. P. 12(b)(6).
Defendants contend that the claims against them in their official capacities are not
authorized; that the plaintiff has failed to exhaust his administrative remedies; that the
plaintiff has failed to state a claim for which relief may be granted; and that the request for
injunctive relief is not properly asserted.
The Magistrate Judge opines that the motion to dismiss should be granted in part and
denied in part. First, the Magistrate Judge suggests that some grievances were exhausted
under the Prison Litigation Reform Act (PLRA) so that the claims may not be dismissed on
that basis.

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Next, the Magistrate Judge opines that under the Eleventh Amendment, the plaintiff
may not maintain an action in federal court against the defendants in their official capacities.
As such, the claims against the defendants in their official capacities should be dismissed.
The Magistrate Judge next suggests that only the claims against defendant Corporal
Marvin Bryant rise to the level of an actionable tort, thus the remaining defendants should
be dismissed.
Finally, the Magistrate Judge opines that the plaintiff’s request for injunctive relief
is now moot as he has been transferred to another correctional institution.
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court find the Magistrate Judge’s Report proper and adopts and
incorporates it herein by reference.
Accordingly, the defendants’ motion to dismiss (ECF No. 20) is granted in part. All
defendants in this action, with the exception of defendant Corporal Marvin Bryant, are
dismissed. The Clerk is directed to refer this matter back to the Magistrate Judge so that the
action may continue as to defendant Bryant in his individual capacity only.
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

September 30, 2014
Columbia, South Carolina

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