Johnson v. Bryant et al

Filing 161

ORDER RULING ON REPORT AND RECOMMENDATIONS. It is hereby ORDERED that the Report is ACCEPTED. ( 201 in the First Action, 155 in the Second Action).With regard to the First Action, Civil Action No. 4:08-cv-2726-TLW-TER, the defendants motion to di smiss, 139 , is DENIED; the plaintiffs motion for summary judgment, 154 is DENIED; and the defendants motion for summary judgment, 157 , is GRANTED as to the plaintiffs second cause of action for a First Amendment violation and DENIED without pre judice and with leave to refile as to the plaintiffs first and third causes of action. With regard to the Second Action, Civil Action No. 3:09-0102-TLW-TER, the defendants motion to dismiss, 104 , is DENIED; the plaintiffs motion for summary judgmen t, 119 , is DENIED; and the defendants motion for summary judgment, 122 , is GRANTED as to the plaintiffs second cause of action for a First Amendment violation and DENIED without prejudice and with leave to refile as to the plaintiffs first and third causes of action. Signed by Honorable Terry L Wooten on 09/15/2010. Associated Cases: 4:08-cv-02726-TLW -TER, 3:09-cv-00102-TLW-TER(dsto, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION Brad R. Johnson, ) ) Plaintiff, ) ) vs. ) ) Lewis v. Hall; Doris Cubit, CPA; A. Able, ) CPA; B. Baker, CPA; and C. Charlie, CPA, ) ) Defendants. ) ____________________________________) Brad R. Johnson, ) ) Plaintiff, ) ) vs. ) ) Randall Bryant; Doris Cubitt, CPA; Malane ) S. Pike, ESQ.; Mark T. Hobbs, CPA; Gary ) F. Forte; Bobby R. Creech, Jr., CPA; ) Donald H. Burkett, CPA; Anthony A. ) Callander, CPA; Wendell Lundsford, PA; ) and John F. Camp, CPA, ) ) Defendants. ) ____________________________________) Civil Action No.: 4:08-2726-TLW-TER

Civil Action No.: 4:09-cv-0102-TLW-TER

ORDER
The plaintiff, Brad R. Johnson, filed two civil actions, pro se, which have been consolidated for purposes of discovery. The lead case, Civil Action No. 4:08-cv-2726-TLW-TER ("First Action"), was filed on August 1, 2008. The next action, Civil Action No. 4:09-cv-0102-TLW-TER ("Second Action"), was filed on January 16, 2009. The defendants filed motions to dismiss each action on October 23, 2009. (Doc. #139 in the First Action, Doc. #104 in the Second Action). Additionally, the plaintiff and the defendants have filed cross motions for summary judgment in each

action. (Docs. #154, #157 in the First Action, Docs. #119, #122 in the Second Action). This matter now comes before this Court for review of the Amended Report and Recommendation ("the Report") filed by United States Magistrate Judge Thomas E. Rogers, III to whom this case was previously assigned. (Doc. #201 in the First Action, Doc. #155 in the Second Action). In the Report, the Magistrate Judge recommends that the defendants' motion to dismiss each action be denied, that the plaintiff's motion for summary judgment in each action be denied, and that the defendants' motion for summary judgment in each action be granted as to the plaintiff's second cause of action for a First Amendment violation in each case, and denied without prejudice and with leave to refile as to the plaintiff's first and third causes of action in each case. The plaintiff filed objections to the Report. (Doc. #205 in the First Action, Doc. #158 in the Second Action).1 In conducting this review, the Court applies the following standard: The magistrate judge makes only a recommendation to the Court, to which any party may file written objections...The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case, the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations. Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations omitted). In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and

South Carolina Attorney General Henry D. McM a s t e r , who filed an amicus memorandum in the First A c tio n , also filed an objection in the First Action. (Doc. #203). The Court notes that the South Carolina Attorney G e n e r a l has taken a position in support of the constitutionality of the statutes challenged in these actions.

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the objections. After careful review of the Report and objections thereto, it is hereby ORDERED that the Report is ACCEPTED. (Doc. #201 in the First Action, Doc. #155 in the Second Action). With regard to the First Action, Civil Action No. 4:08-cv-2726-TLW-TER, the defendants' motion to dismiss, (Doc. #139), is DENIED; the plaintiff's motion for summary judgment, (Doc. #154) is DENIED; and the defendants' motion for summary judgment, (Doc. #157), is GRANTED as to the plaintiff's second cause of action for a First Amendment violation and DENIED without prejudice and with leave to refile as to the plaintiff's first and third causes of action. With regard to the Second Action, Civil Action No. 4:09-0102-TLW-TER, the defendants' motion to dismiss, (Doc. #104), is DENIED; the plaintiff's motion for summary judgment, (Doc. #119), is DENIED; and the defendants' motion for summary judgment, (Doc. #122), is GRANTED as to the plaintiff's second cause of action for a First Amendment violation and DENIED without prejudice and with leave to refile as to the plaintiff's first and third causes of action. IT IS SO ORDERED. s/Terry L. Wooten United States District Judge September 15, 2010 Florence, South Carolina

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