Herbert v. Gooding et al

Filing 108

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 101 Report and Recommendation, granting 75 Motion for Summary Judgment, denying 38 Motion for Fast and Speedy Trial and to Transfer all Evidence, 41 M otion for Discovery, denying 41 Motion to Suppress All Evidence and for a Fast and Speedy Trial, denying 47 Motion for Judgment on the Pleadings, denying 47 Motion for Separate Trials, denying 48 Motion for Summary Judgment, denying 69 M otion for a PR Bond, denying 59 Motion for Summary Judgment, denying 80 Motion to Transfer Evidence, denying 104 Motion for Extension of Time, denying 104 Motion for Different Judges, denying 104 Motion to Change Venue, denying 104 Motion to Amend/Correct and dismissing matter with prejudice. Signed by Honorable Cameron McGowan Currie on 7/2/2013. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Robert Fletcher Herbert,

)
)
Plaintiff,
)
)
v.
)
)
Michael L. Gooding, 0257; and Det. Brian )
Smith;
)
)
Defendants.
)
___________________________________ )

C/A NO. 3:12-2621-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)(d), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and
a Report and Recommendation (“Report”). On June 20, 2013, the Magistrate Judge issued a Report
recommending that Defendants’ motion for summary judgment be granted and that other pending
motions filed by Plaintiff 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. On June 27, 2013, Plaintiff filed a multi-page document which cites all of Plaintiff’s pending
and closed cases,1 and which seeks relief on a variety of matters. As relates to this matter, Plaintiff

1

Since November 2012, Plaintiff has filed seven (7) civil actions in this Court: Herbert v.
Gooding, et al., DSC Civil Action No. 3:12-2621-CMC-PJG; Herbert v. WLTX News, et al., DSC
Civil Action No. 3:12-3485-CMC-PJG (dismissed without prejudice on 3/25/13); Herbert v.
Treaster, et al., DSC Civil Action No. 3:13-262-CMC-PJG; Herbert v. State of South Carolina, et
al., DSC Civil Action No. 3:13-453-CMC-PJG (dismissed with prejudice and counted as strike
under 28 U.S.C. § 1915(g) on 5/21/13); Herbert v. Weed, DSC Civil Action No. 3:13-1343-CMC1

seeks an extension of time “on the judgement [sic].” Mot. at 1 (ECF No. 104).2 Additionally,
Plaintiff seeks to amend his complaint to sue “each officer in [his] individual and official capacity
(under the tort claims act)[.]” Id. Finally, as relates to this case, Plaintiff contends his “speedy trial
rights” have been violated by the various rulings of the Magistrate Judge to whom this matter was
assigned, and that he wants to “appeal” this case. Id. at 3.
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
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 the 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 conclusions of the Magistrate Judge. Accordingly, the court
adopts and incorporates the Report and Recommendation by reference in this Order.
Throughout Plaintiff’s filing, he contends that his “speedy trial rights” have been violated
and that the Report’s alleged failure to find perjury in the Defendants’ submissions in support of
summary judgment is based upon judicial bias and racial prejudice. These assertions are frivolous

PJG; Herbert v. Prestigiacomo, DSC Civil Action No. 3:13-1354-CMC-PJG; and Herbert v.
Stoudemire, DSC Civil Action No. 3:13-1570-CMC-PJG.
2

This document was filed separately in all the civil actions listed in note 1, receiving a
separate document number in each case.
2

and without merit.3
Additionally, Plaintiff’s request for additional time “on the judgement [sic]” is denied.
Plaintiff received a copy of the Report, and has responded to it, albeit in a rambling and incoherent
manner.
Defendants’ motion for summary judgment is granted. Plaintiff’s other pending motions
in this matter are denied, and this matter is dismissed with prejudice.
IT IS SO ORDERED.

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

Columbia, South Carolina
July 2, 2013

3

The Speedy Trial Act, 18 U.S.C. § 3161, et seq. applies to criminal defendants’ rights to be
brought to trial in criminal cases brought in the United States District Court. It does not apply to
civil actions.
3