Guess v. Social Security Administration et al
Filing
38
OPINION and ORDER RULING ON REPORT AND RECOMMENDATION for 30 Report and Recommendation, denying 33 Motion to Amend/Correct. Signed by Honorable Cameron McGowan Currie on 10/2/2012. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Thurmond Guess, Sr.,
)
)
Plaintiff,
)
)
v.
)
)
Thomas J. Motycka,
)
)
Defendant.
)
__________________________________________)
C/A No. 3:12-cv-1092-CMC-PJG
OPINION and ORDER
Through this action, Plaintiff, proceeding without counsel (“pro se”), asserts three state law
causes of action against Thomas J. Motycka, M.D. (“Dr. Motycka”), a consultative examiner for the
Social Security Administration. The Magistrate Judge conducted an initial review of the complaint
and construed it as a premature challenge to denial of Social Security Disability benefits. Based on
that construction, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending the complaint be dismissed without service and without prejudice.
Plaintiff filed a timely objection to the Report, agreeing to dismissal of his claims against the
Social Security Administration but challenging dismissal of his claims against Dr. Motycka. The
court dismissed the claims against the Social Security Administration but recommitted the matter
to the Magistrate Judge to address Plaintiff’s claims against Dr. Motycka.
The matter is currently before the court for review of the Report and Recommendation
(“Report”) of Magistrate Judge Paige J. Gossett, which was filed on August 24, 2012. Dkt. No. 30.
The Report recommends that the court dismiss this action. Id. The Report found that any federal
claims by Plaintiff fail as a matter of law, and the court has no jurisdiction over Plaintiff’s state law
1
claims. On August 27, 2012, Plaintiff mailed a proposed amended complaint. Dkt. No. 33. On
August 31, 2012, Plaintiff filed objections to the Report. Dkt. No. 35. Plaintiff generally objects
to “pages 2-9 of the report and recommendation”1 and requests that the court “rul[e] on his amended
complaint.” Id.
STANDARD
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Magistrate Judge’s Report and Recommendation to which a
specific objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the court reviews the Report
and Recommendation only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court
need not conduct a de novo 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”) (citation omitted).
DISCUSSION
In absence of a specific objection to a portion of the Report, the court has reviewed the
complaint, the applicable law, and the findings and recommendations of the Magistrate Judge for
clear error. Finding none, the court adopts and incorporates the Report by reference.
The court also reviews Plaintiff’s proposed amended complaint. Plaintiff’s proposed
1
The entire Report is 8 pages, followed by a notice of right to file objections on page 9.
2
amended complaint seeks to add Carolina Occupational Health as a Defendant.2 The proposed
amended complaint also contains a new cause of action for race discrimination under 42 U.S.C. §§
1981, 1982, and 1992. Dkt. No. 33-1 at 2. Although not specifically defined as a cause of action
in the complaint, the Report addressed Plaintiff’s allegations under § 1981. The Report found that
“Plaintiff cannot maintain a § 1981 action against Defendant Motycka because there is no allegation
that Defendant Motycka has interfered with Plaintiff’s ability to make contracts.” Similarly, there
are no allegations that Carolina Occupational Health interfered with Plaintiff’s ability to make
contracts. Plaintiff, therefore, cannot maintain a § 1981 action against either Dr. Motycka or
Carolina Occupational Health.
Plaintiff does not have a claim under § 1982 because he has not alleged any race
discrimination with respect to housing. See 42 U.S.C. § 1982 (“All citizens of the United States
shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to
inherit, purchase, lease, sell, hold, and convey real and personal property.”). Section 1992 is
irrelevant to Plaintiff’s allegations as it authorizes the President to direct a speedy trial in certain
circumstances.3 Accordingly, the court denies Plaintiff’s request to amend his complaint as futile
2
The proposed amended complaint contains no unique factual allegations as to Carolina
Occupational Health.
3
Section 1992 provides:
Whenever the President has reason to believe that offenses have been, or are likely
to be committed against the provisions of section 1990 of this title or of sections
5506 to 5516 and 5518 to 5532 of the Revised Statutes, within any judicial district,
it shall be lawful for him, in his discretion, to direct the judge, marshal, and United
States attorney of such district to attend at such place within the district, and for such
time as he may designate, for the purpose of the more speedy arrest and trial of
persons so charged, and it shall be the duty of every judge or other officer, when any
such requisition is received by him to attend at the place and for the time therein
designated.
3
because his amendments would not survive a motion a dismiss.4
CONCLUSION
For the reasons set forth above and in the Report, the court denies Plaintiff’s request to
amend his complaint and dismisses Plaintiff’s claims without prejudice.
IT IS SO ORDERED.
S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
October 2, 2012
42 U.S.C. § 1992.
4
See Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294-95 (4th Cir. 1999) (affirming denial
of motion to amend based on futility).
4
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