McFadden v. McKay et al

Filing 23

ORDER. The court ACCEPTS the Magistrate Judge's 16 Report and Recommendation and incorporates it herein. Accordingly, the court VACATES the prior 7 Order providing Plaintiff with permission to proceed in forma pauper is and DENIES Plaintiff permission to proceed in forma pauperis, ORDERS Plaintiff to pay the appropriate filing fee within twenty-one (21) days, and ORDERS THE DISMISSAL of Plaintiff's 1 Complaint if Plaintiff fails to timely pay the filing fee. If Plaintiff pays the appropriate filing fee, the court REFERS this matter to the Magistrate Judge for further pre-trial proceedings. Signed by Honorable J Michelle Childs on 05/01/2019.(hada, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Bernard McFadden,

)
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Plaintiff,
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v.
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)
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Mr. John McKay, Former Sgt. of Kershaw )
Correctional Institution; Jane or John Doe, )
KRCI Caseworker; Mrs. Mellisa Williams, )
KRCI Lt.; Mrs. FNU Henderson, KCRI Lt.; )
Mr. FNU Hunter, Lt. of KRCI; Mr. FNU
)
Ford, KRCI Major; Mr. David Dunlap,
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Warden of KRCI; Mr. Donnie
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Stonebreaker, Associate Warden of KRCI; )
Mr. Gregory LNU, Grievance Hearing
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Officer; and Mrs. FNU Ventura, Kiosk
)
Records Officer, in their individual
)
capacities,
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Defendants.
)
____________________________________)

Civil Action No.: 2:17-cv-00252-JMC
ORDER

This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation filed on August 18, 2017. (ECF No. 16.) The Report recommends that the court:
(1) deny Plaintiff Bernard McFadden (“Plaintiff”) permission to proceed in forma pauperis and
vacate the prior Order (ECF No. 7) granting Plaintiff permission to proceed in forma pauperis; (2)
provide Plaintiff with twenty-one (21) days to pay the appropriate filing fee; and (3) dismiss the
Complaint (ECF No. 1), without prejudice, if Plaintiff fails to timely pay the appropriate filing fee
and order the Clerk of Court of the United States District Court for the District of South Carolina
to enter the “required final judgment” at the close of the twenty-one (21) day period. (Id. at 15.)
For the reasons stated herein, the court ACCEPTS the Magistrate Judge’s Report (ECF No. 16)
and incorporates it herein. Accordingly, the court VACATES the prior Order (ECF No. 7)
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providing Plaintiff with permission to proceed in forma pauperis and DENIES Plaintiff
permission to proceed in forma pauperis, ORDERS Plaintiff to pay the appropriate filing fee
within twenty-one (21) days, and ORDERS THE DISMISSAL of Plaintiff’s Complaint (ECF
No. 1) if Plaintiff fails to timely pay the filing fee. If Plaintiff pays the appropriate filing fee, the
court REFERS this matter to the Magistrate Judge for further pre-trial proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 16 at 1–2.) As background, Plaintiff filed his Complaint
pursuant to 42 U.S.C. § 1983 on January 24, 2017. 1 (ECF No. 1-2 at 2.) Plaintiff alleges that
caseworkers “knowingly and willfully [made] his cell assignments with mental health or nonChristian inmates,” which led to his harassment. (ECF No. 1 at 4.) Additionally, Plaintiff claims
that on or about January 30, 2015, he was assaulted by a “psychotic cafeteria worker” and received
little medical attention after being pepper sprayed by prison authorities. (Id. at 4–5.) Plaintiff
contends that other inmates observed the cafeteria worker’s “apparent disorders and/or odd
behaviors.” (Id. at 5.) Plaintiff also alleges that he was retaliated against for “continuing to
document and wanting to report [the South Carolina Department of Corrections’] crime of []
transporting, storing, and serving adulterated poultry.” (Id.) According to Plaintiff, his rights under
the First Amendment of the United States Constitution were violated by prison officials when he
wanted to report the crime involving the adulterated poultry. (Id. at 6.) Plaintiff seeks a total sum

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Under the prison mailbox rule, “a pro se litigant’s legal papers are considered filed upon ‘delivery
to prison authorities, not receipt by the clerk.’” United States v. McNeill, 523 F. App’x 979, 981
(4th Cir. 2013) (quoting Houston v. Lack, 487 U.S. 266, 275 (1988)). The envelope containing
Plaintiff’s Complaint indicates, by stamp, that it was delivered to prison officials on January 24,
2017. (ECF No. 1-2 at 2.) Therefore, pursuant to Houston, Plaintiff’s Complaint was filed on
January 24, 2017. 487 U.S. at 275.
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of ten million dollars and zero cents ($10,000,000.00) in damages from Defendants Mr. John
McKay, Jane or John Doe, Mrs. Mellisa Williams, Mrs. FNU Henderson, Mr. FNU Hunter, Mr.
FNU Ford, Mr. David Dunlap, Mr. Donnie Stonebreaker, Mr. Gregory LNU, and Mrs. FNU
Ventura (collectively, “Defendants”). (Id. at 29.)
The Magistrate Judge filed her Report on August 18, 2017. (ECF No. 16.) Within the
Report, the Magistrate Judge found that “Plaintiff appears to have at least three strikes” under the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), which bars him from proceeding in
forma pauperis in the present action. (Id. at 10–11.) Additionally, the Magistrate Judge determined
that Plaintiff has engaged in a “longstanding, clear pattern of abusive filings” and described him
as a “prolific filer of meritless § 1983 actions.” (Id. at 12.) According to the Magistrate Judge,
Plaintiff has been a party in over thirty § 1983 actions, many of which involve complaints about
“the quality and quantity of food being served in prison,” cell assignments, fellow inmates, the law
library, drug screenings, and much more. (Id. at 12–13.) Because Plaintiff is not in any imminent
danger of serious physical injury, especially given that he has been released, the Magistrate Judge
further found that the court should exercise its discretion to deny Plaintiff permission to proceed
in forma pauperis. (Id. at 11–14.) The Magistrate Judge ultimately recommends that the court do
the following: (1) deny Plaintiff permission to proceed in forma pauperis and vacate the prior
Order (ECF No. 7) granting Plaintiff permission to proceed in forma pauperis; (2) provide Plaintiff
with twenty-one (21) days to pay the appropriate filing fee; and (3) dismiss the Complaint (ECF
No. 1), without prejudice, if Plaintiff fails to timely pay the appropriate filing fee and order the
Clerk of Court for the District Court of South Carolina to enter the “required final judgment” at
the close of the twenty-one (21) day period. (Id. at 15.)
The parties were apprised of their opportunity to file specific, written objections to the

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Report on February 20, 2019. (Id. at 16.) Plaintiff filed his Objections to the Report on September
13, 2017. 2 (ECF No. 18.) However, objections to the Report were due by September 4, 2017,
because Plaintiff was served by mail. (ECF No. 16.) Defendants did not file any objection to the
Report.
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no presumptive weight. See Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). The responsibility to make a final determination remains
with the court. Id. at 271. As such, the court is charged with making de novo determinations of
those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1). See
also FED. R. CIV. P. 72(b)(3). In the absence of specific objections to the Magistrate Judge’s
Report, the court is not required to give any 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). Thus, the court may accept, reject, or modify, in whole or in part, the

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At this juncture, Plaintiff was no longer incarcerated when the Report or his Objections were
filed on the court’s docket. (ECF No. 15 at 1–3; ECF No. 16 at 2.) Accordingly, the prison mailbox
rule, which would permit the filing of his Objections when they were delivered to prison
authorities, does not apply because Plaintiff was no longer incarcerated and assumed the risk of
using postal services. See generally Houston, 487 at 275 (“Thus, whereas the general rule has been
justified on the ground that a civil litigant who chooses to mail a notice of appeal assumes the risk
of untimely delivery and filing, a pro se prisoner has no choice but to hand his notice over to prison
authorities for forwarding to the court clerk.” (internal citations omitted)).
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Magistrate Judge’s recommendation or recommit the matter with instructions. 28 U.S.C. §
636(b)(1).
The court is required to interpret pro se documents liberally and will hold those documents
to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). See also Hardin v. United States, C/A No. 7:12–cv–0118–GRA, 2012 WL
3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally, pro se documents must be construed in a
manner, “no matter how inartfully pleaded, to see whether they could provide a basis for relief.”
Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug. 12, 1997). Although pro se
documents are liberally construed by federal courts, “[t]he ‘special judicial solicitude’ with which
a district court should view pro se complaints does not transform the court into an advocate.”
Weller v. Dep’t of Soc. Servs. for Balt., 901 F.2d 387, 391 (4th Cir. 1990).
III. DISCUSSION
As a threshold matter, an objection to the Report must be timely. See Diamond, 416 F.3d
at 315 (“[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.” (emphasis added) (quoting FED. R. CIV. P. 72 advisory
committee’s note)). Here, the Report was filed on August 18, 2017, and Plaintiff’s Objections were
due by September 4, 2017, because Plaintiff was served by mail, which permitted an additional
three (3) days for the filing of his Objections. (ECF No. 16.) Plaintiff’s Objections were not filed
until September 13, 2017 (ECF No. 18). Because September 13, 2017, is well after September 3,
2017, Plaintiff’s Objections are untimely, and the court need not consider them. See FED. R. CIV.
P. 72(a) (“A party may not assign as error a defect in the order not timely objected to.”); Taylor v.
Gainey, F. App’x 426, 427 (4th Cir. 2006) (“Taylor has waived appellate review by failing to

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timely file specific objections after receiving proper notice.”); Anderson v. United States, C/A No.
8:12–3203, 2015 WL 1754530, at *2 (D.S.C. Apr. 17, 2015) (“Because the objections are
untimely, Anderson waived this court’s review of that order.” (citation omitted)).
In the absence of timely, written objections to the Magistrate Judge’s Report, the court is
not required to give any explanation for adopting the Report. See Diamond, 416 F.3d at 315;
Camby, 718 F.2d at 199. Absent specific objections, the court must only ensure that there is no
clear error on the face of the record in order to accept a recommendation. Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982) (“Courts have also held de novo review to be unnecessary in analogous
situations when a party makes general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.”). Furthermore, a
failure to file specific, timely objections to the Report results in a party’s waiver of the right to
appeal from the judgment of the court based upon such recommendation. 28 U.S.C. § 636(b)(1).
The court concludes that the Report accurately summarizes the law and correctly applies it to the
instant Petition. (ECF No. 16.) Accordingly, construing Plaintiff’s Objections liberally, the court
finds he failed to advance any timely, specific objections to the Report, and the court adopts the
Report herein because it does not contain clear error. Camby, 718 F.2d at 199.
IV. CONCLUSION
After a careful examination of the Report and record, the court ACCEPTS the Magistrate
Judge’s Report and Recommendation (ECF No. 16) and incorporates it herein. Accordingly, the
court VACATES the prior Order (ECF No. 7) providing Plaintiff with permission to proceed in
forma pauperis and DENIES Plaintiff permission to proceed in forma pauperis, ORDERS
Plaintiff to pay the appropriate filing fee within twenty-one (21) days, and ORDERS THE
DISMISSAL of Plaintiff’s Complaint (ECF No. 1) if Plaintiff fails to timely pay the filing fee.

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If Plaintiff pays the appropriate filing fee, the court REFERS this matter to the Magistrate Judge
for further pre-trial proceedings.
IT IS SO ORDERED.

United States District Judge

May 1, 2019
Columbia, South Carolina

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