Kitchen v. Riley et al

Filing 108

ORDER adopting 106 Report and Recommendation of Magistrate Judge Mary Gordon Baker. Defendants Corney, Strickland, and Dietrich are DISMISSED from this action. Signed by Honorable Richard M Gergel on 8/19/2015.(ssam, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

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Harry D. Kitchen,

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Plaintiff,
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vs.
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Joseph P. Riley, Mayor ofCharleston, SC; )
H. M. Kind, Sgt Charleston Police Dept.; )
Simone Douglas, Ofc. Charleston Police
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Dept.; FNU Alltine, Sgt. Charleston Police )
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Dept.; Time Strickland, Owner Market
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Street Sweets; Alesia Rico Flores, Judge
ofthe Livability Court, Charleston, SC;
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Sgt. George Hildebidle, Charleston Police )
Dept.; Officer Sandra Proude, Charleston )
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Police Dept.; David Corney, Gen. Mgr.
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Market St. Sweets; Elizabeth Dietrich,
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Defendants.
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No.2: 14-cv-00569

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge, (Dkt. No. 106), recommending that Defendants Corney and Strickland's
motion to dismiss, (Dkt. No. 76) be granted and Defendant Dietrich's motion to dismiss, (Dkt.
No. 79), be granted. Plaintiff has not filed objections to the R & R. For the reasons stated
below, the Court the adopts the R & R and dismisses these three defendants.
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, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28

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u.S.c. § 636(b)( 1).

This Court is charged with making a de novo determination of those

portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(l»; accord Fed. R. Civ. P. 72(b). Here, however, because no objection has been
made, this Court "must 'only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.'" Id. (quoting Fed. R. Civ. P 72 advisory committee note).
Moreover, in the absence of specific objections to the R & R, the Court need not give any
explanation for adopting the Magistrate Judge's analysis and recommendation. See Camby v.

Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
The Court has carefully reviewed the pleadings, the parties' briefing, and the R & R, and
concludes that the Magistrate Judge correctly applied the relevant law to the operative facts in
this matter. The Court agrees that (1) Plaintiff has failed to allege that these three defendants
acted under state law and, therefore, has failed to state a claim under Section 1983; (2) Plaintiff
has failed to allege that any of these three defendants are motivated by a specific class-based
invidiously discriminatory animus and, therefore, has failed to state a claim under Section 1985,
and (3) the criminal statutes cited by Plaintiff in his Second Amended Complaint do not allow for
civil causes of action.
Therefore, the Court ADOPTS the R&R, (Dkt. No. 106), as an Order of this Court.
Accordingly, Defendants Corney, Strickland, and Dietrich are DISMISSED from this action.

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AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge
AugustlL,2015
Charleston, South Carolina

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