Temple v. Greenville County et al

Filing 48

ORDER ADOPTING THE REPORT AND RECOMMENDATION, granting defendants' motion for summary judgment and dismissing defendant Williams sua sponte, for 46 Report and Recommendations. Signed by Honorable Margaret B Seymour on December 9, 2010. (kbos)

T e m p l e v. Greenville County et al

D o c . 48

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

D e n n is M. Temple,

) ) C/A No. 3:09-2655-MBS Plaintiff, ) ) vs. ) ) ORDER W il li e Johnson, Chief of the City of ) G re e n v ille Department of Police; Judge ) B r e n d a S. Binns; Judge Ralph Putnam; ) S e rgea n t S.L. Owens; Sergeant A.L. ) T h o m a s ; Detective D.C. Fuller; ) D e te c tiv e C.H. Flavell; Officer B.M. ) M a n n i n g ; Officer J.D. Chandler; ) O ffi c e r T.M. Conroy; Taniesha Nicole ) W i ll ia m s ; Officer J.M. Calhoun, all in their ) in d iv id u a l and official capacities, and ) C ity of Greenville, ) ) D e fe n d a n t s . ) ____________________________________) O n or about June 28, 2006, Plaintiff Dennis M. Temple allegedly sexually assaulted D e fe n d a n t Taniesha Nicole Williams. Plaintiff was arrested and charged with criminal sexual c o n d u c t, first degree; kidnaping; and assault and battery of a high and aggravated nature. Plaintiff, p r o c e e d i n g pro se, filed a complaint on October 15, 2009, alleging that his constitutional rights were v io la te d with respect to his arrest. Thus, Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was re fe rre d to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. On March 9, 2 0 0 9 , Defendants Binns, Calhoun, Chandler, Conroy, Flavell, Fuller, Greenville City,1 Johnson,

Plaintiff erroneously named as a party in the complaint a nonexistent entity, "County of Greenville Department of Police." The Magistrate Judge allowed Defendants to amend the caption to substitute the City of Greenville for Greenville County. See Entry 42.

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M a n n in g, Owens, Putnam, and Thomas filed a motion for summary judgment. On March 10, 2010, a n order was pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), advising Plaintiff of the s u m m a ry judgment procedure and the consequences of failing to respond adequately. Plaintiff filed n o substantive response. See Entry 45. On November 8, 2010, the Magistrate Judge filed a Report and Recommendation in which h e recommended that Defendants' motion for summary judgment be granted and that the sole re m a in in g Defendant, Williams, be dismissed sua sponte on the grounds that she is not a state actor fo r purposes of § 1983. Plaintiff filed no response in opposition to the Report and Recommendation. The Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of a timely filed objection, a district court need not conduct a de novo r e v i e w , but instead must "only satisfy itself that there is no clear error on the face of the record in o rd e r to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315

(4th Cir. 2005).
The court has carefully reviewed the record. The court adopts the Report and

R e co m m e n d a tio n and incorporates it herein by reference. Defendants motion for summary judgment (E n try 30) is granted. Defendant Williams is dismissed sua sponte. The court declines to exercise

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ju ris d ic tio n over any state law claims asserted by Plaintiff. IT IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina D e ce m b e r 9, 2010.

NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified that he has the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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