Swinton v. Gum et al

Filing 69

OPINION AND ORDER adopting Report and Recommendations re 64 Report and Recommendation; finding as moot 45 Motion to Reschedule Deposition; finding as moot 47 Motion for Sanctions; finding as moot 55 Motion for Issu ance of Subpoena; finding as moot 68 Motion for Hearing; granting 20 Motion for Summary Judgment; granting 30 Motion for Summary Judgment; finding as moot 36 Motion to Expand Lawsuit; finding as moot 37 Evidentiary Motion on the Law of Qualified Forensic Audio Specialist for Authentication. This case is dismissed with prejudice. Signed by Honorable Cameron McGowan Currie on 6/20/2013.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Ali Swinton,

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Plaintiff,
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v.
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Ms. Desiree Allen, South Carolina Court, )
Administrator; Ms. Bettye Gum, South
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Carolina Court Reporter,
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Defendants.
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___________________________________ )

C/A NO. 3:12-1587-CMC-PJG

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and
a Report and Recommendation (“Report”). On May 30, 2013, the Magistrate Judge issued a Report
recommending that Defendants’ motion for summary judgment, as supplemented, be granted, and
that any remaining pending motions be terminated. The Magistrate Judge advised Plaintiff of the
procedures and requirements for filing objections to the Report and the serious consequences if he
failed to do so. Plaintiff filed objections to the Report on June 18, 2013.
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 Report of the Magistrate Judge to which a specific objection is
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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).
After conducting a de novo review as to objections made, and considering the record, the
applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections,
the court agrees with the conclusion of the Report. Accordingly, the Report is adopted by reference
in this Order.
Plaintiff’s objections are without merit.1 Plaintiff acknowledges he is suing Defendants in
their official capacity, see Objections at 6 (ECF No. 67), but that Defendants “intentionally [misled]
the court system and intentionally held up Mr. Swinton’s due process on appeal.” Id. This
unsupported contention does nothing to overcome the fact that Defendants are immune from suit in
this court in their official capacity. See Report at 5 (“Sovereign immunity protects both the State
itself and its agencies, divisions, departments, officials, and other ‘arms of the State[,]” from suit in
federal court) (quoting Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989)).
Accordingly, Defendants’ motion for summary judgment, as supplemented, is granted
(ECF Nos. 20, 30, and 59) and this case is dismissed with prejudice.2

1

Plaintiff objects to footnote 2 of the Report which states that “[i]t appears that at this time,
Swinton also began service of seven separate sentences for probation violations, to be served
concurrently.” Report at 2, n.1 (ECF No. 64). The record indicates that in January 2006, when
Plaintiff’s 2003 sentences were unsealed, he also admitted to and was sentenced on three probation
violations, which each carried terms of seven years’ imprisonment. These probation violation
sentences were to be served concurrently with each other and the other sentences he received that
day. See ECF No. 40-2 at 12.
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The Clerk shall terminate all other pending motions as moot.
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IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
June 20, 2013

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