Webb v. Brock et al

Filing 10

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action without prejudice and without issuance and service of process, and dismissing plaintiff's motion to amend the caption, for 6 Report and Recommendation. Signed by Honorable Joseph F Anderson, Jr on April 12, 2010. (kbos)

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA E rn e st D. Webb, #314587, P l a in tif f , vs. C a p ta in Gene Brock, Walhalla Police Dept., D e f e n d a n t. _______________________________________ ) ) ) ) ) ) ) ) ) C/A No. 3:10-139-JFA-JRM

ORDER

T h e pro se plaintiff, Ernest D. Webb, is an inmate at the South Carolina Department o f Corrections. He brings this action pursuant to 42 U.S.C. § 1983 contending that the d e f en d a n t used excessive force on him the day after he was arrested when he returned to the p o lic e department to obtain his personal property. He seeks damages for his physical injuries re su ltin g in defendant's alleged battery and excessive force. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n and opines that this action should be dismissed as untimely because the sta tu te of limitations period has expired with respect to the alleged incident. T h e plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on February 9, 2010. The plaintiff filed o b je c tio n s to the Report, as well as a motion to amend the caption in the case.

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The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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T h e incident of which the plaintiff complains occurred on March 31, 2004. Plaintiff c o n te n d s that the defendant approached him in the parking lot when plaintiff was returning to the police department to obtain his personal property the day after he was arrested and pled g u ilty to charges of possession of marijuana charges. The Magistrate Judge properly notes that in § 1983 cases alleging excessive force, this c o u rt must apply South Carolina's general personal injury statute of limitations which sets a three-year limitations period for causes of action arising on or after April 5, 1988. S.C. C o d e Ann. § 15-3-535; Wilson v. Garcia, 471 U.S. 261 (1985). A s this matter allegedly occurred on March 31, 2004, and the present action was not f i l e d until January 12, 2010, the statute of limitations expired more than two and one-half ye a rs ago. In his objections to the Report, plaintiff contends that the statute of limitations does n o t apply to him because he was imprisoned and was therefore under a "disability," citing S h u b r ic k v. Adams, 20 S.C. 49 (1883) and S.C. Code Ann. 15-3-40. In the case of Wright v . Oliver, 99 F.3d 1133 (Table) (4th Cir. 1996), the Fourth Circuit held, in an unpublished d e c is i o n , that "[p]ursuant to S.C. Code Ann. § 15-3-40 (Law.Co-op.Supp.1995), a person im p riso n e d on a criminal or civil charge at the time the cause of action accrues is entitled to h a v e the statute of limitations tolled until five years beyond the applicable limitations period o r such time as he or she is released from prison. In order to toll the statute of limitations, the p la in tif f must have been in prison at the time his causes of action accrued." However, while Wright held that a person who is imprisoned at the time a cause of a c tio n accrues is entitled to have the statute of limitations tolled, the state statute upon which

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th e Wright Court relied was repealed by the South Carolina General Assembly in 1996. 1996 S .C . Acts No. 234 (amending S.C. Code Ann. § 15-3-40 to delete the tolling provision for im p r is o n e d persons). Therefore, South Carolina law, which applies to the issue of timeliness in this matter, did not, at the time the plaintiff asserts his claims arose, provide for statutory to llin g of a limitations period based on imprisonment. See S.C. Code Ann. § 15-3-40 (2005) (la st amended 1996). Accordingly, the Wright case is of no avail to the plaintiff. After a careful review of the record, the applicable law, the Report and R e c o m m e n d a tio n , and the plaintiff's objections thereto, the court finds the Magistrate Ju d g e 's recommendation proper and incorporated herein by reference. Accordingly, this a c t io n is dismissed without prejudice and without issuance and service of process. Plaintiff's m o tio n to amend the caption is dismissed. IT IS SO ORDERED.

A p ril 12, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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