Woodley v. Charleston Police Department, City of et al

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATION for 13 . The Court ADOPTS the Report and Recommendation of the Magistrate Judge as the Order of the Court and DISMISSES WITHOUT PREJUDICE the City of Charleston Police Department from this action. Signed by Honorable Richard M Gergel on 7/17/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Terrell J. Woodley, Sr.,

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Civil Action No. 2:17-1467-RMG

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Plaintiff,
v.
City of Charleston Police Department and
Jory Bradshaw, Police Officer, City of
Charleston PD,

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ORDER AND OPINION

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Defendants.

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This matter is before the Court on the Report and Recommendation of the Magistrate Judge
(Dkt. No. 13), recommending summary dismissal of the City of Charleston Police Department
from this action brought under 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis so this
matter is subject to initial review under 28 U.S.C. § 1915.
To state a claim under § 1983, a plaintiff must allege that a person acting under color of
state law violated a right secured by the Constitution or laws of the United States. Because a police
department is not a person under§ 1983, the Magistrate Judge recommends summary dismissal of
the City of Charleston Police Department from this action. The Court agrees that the City of
Charleston Police Department is a department of the municipality of the City of Charleston and
not a legal entity capable under South Carolina law of suing or being sued in its own name. See
S.C. Code ch. 5-7. It therefore is not a person under§ 1983. See Smith v. Munday, 848 F.3d 248,
256 (4th Cir. 2017). The Court therefore ADOPTS the Report and Recommendation of the
Magistrate Judge (Dkt. No. 13) as the Order of the Court and DISMISSES WITHOUT
PREJUDICE the City of Charleston Police Department from this action.

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AND IT IS SO ORDERED.

Richard M
July \ 1, 2017
Charleston, South Carolina

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ergel
istrict Court Judge