Bey v. Ziegler et al

Filing 12

ORDER AND OPINION adopting 8 Report and Recommendation Magistrate Judge Mary Gordon Baker. Plaintiff's Complaint is dismissed with prejudice and without issuance of service of process. Signed by Honorable Richard M Gergel on 10/20/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Demeian Pinckney Bey,

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Plaintiff,

v.
Solicitor Alex Ziegler and
Julie Armstrong,
Defendants.

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ORDER AND OPINION

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This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No. 8) recommending that Plaintiff's Complaint (Dkt. No. 1) be
summarily dismissed with prejudice and without issuance of service of process. For the reasons
set forth below, this Court adopts the R. & R. as the order of the Court.
I.

Background and Relevant Facts
Plaintiff Demeian Pinckney Bey filed this civil action pursuant to 42 U.S.C. § 1983.

Plaintiff is proceeding pro se and in forma pauperis. Plaintiff was a pretrial detainee at the
Sheriff Al Cannon Detention Center located in Charleston, South Carolina when he filed his
Complaint. Plaintiff alleges that the Defendant Clerk of Court signed a "defective" arrest warrant
and that the Defendant Solicitor denied Plaintiff his due process "by failing to answer" Plaintiff's
discovery requests in his pending state criminal case. The Charleston County Sheriff's Office
website shows that Plaintiff was released on September 13, 2017, about five days after he filed
the instant Complaint.

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II.

Legal Standards
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the

development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't of Social Services, 901 F.2d 387 (4th Cir. 1990).

b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).

III.

Discussion
The Magistrate Judge has explained in the R. & R. that this matter should be summarily

dismissed because it is frivolous and fails to state a claim on which relief may be granted. The
Magistrate Judge mailed the R. & R. to Plaintiff on September 25, 2017, but the mailing was
returned as undeliverable. (Dkt. Nos. 9, 10.) The Charleston County Sheriffs Office website
shows that Plaintiff was released on September 13, 2017, about five days after he filed the instant
Complaint. The Magistrate previously issued an order explaining that Plaintiff was responsible
for notifying the Court of any change in address and that his case could be dismissed for his

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failure to do so. (Dkt. No. 6.) Plaintiff likely did not receive that notice as he was released from
the detention center on September 13, 2017. Nonetheless, Plaintiff acknowledged when he
submitted his initial Complaint that "I understand that my failure to keep a current address on file
with the Clerk's Office may result in the dismissal of my case." (Dkt. No. 1 at 13.) Plaintiff has
failed to notify the Clerk's Office of his current address since his release from the Sheriff Al
Cannon Detention Center on September 13, 201 7.
Objections to the R. & R. were due by October 13, 2017. No party has filed Objections to
the R. & R. In the absence of any specific objections, "a district court need not conduct a de nova
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." See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). This Court finds that the Magistrate
Judge has correctly applied the controlling law to the facts of this case.

Conclusion

IV.

For the reasons set forth above, this Court adopts the R. & R. (Dkt. No. 8) as the order of the
Court.

Plaintiff's Complaint is dismissed with prejudice and without issuance of service of

process.

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
October "LO , 2017
Charleston, South Carolina

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