Mayo et al v. South Carolina, State of et al

Filing 78

ORDER RULING ON REPORT AND RECOMMENDATION accepting 70 Report and Recommendation, granting 60 Motion for Summary Judgment, filed by Treyor Brown, Jason Tassone, denying as moot 68 Motion to Strike filed by Treyor Brown, Jason Tassone. Signed by Honorable J Michelle Childs on 3/1/2017. (asni, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Mr. Ray Mayo, #363744, and Mrs. Certoya Mayo, ) ) ) Plaintiffs, ) ) v. ) ) State of South Carolina; Sumter County ) Sheriff’s Dept.; Officer Sgt. Jason Tassone; ) and Officer Sgt. Treyor Brown, ) ) Defendants. ) ) Civil Action No. 3:15-cv-02698-JMC ORDER Plaintiffs Mr. Ray Mayo and Mrs. Certoya Mayo (collectively “Plaintiffs”), proceeding pro se and in forma pauperis, brought this action pursuant to Title 42 U.S.C. § 1983 alleging that Defendants Sgt. Jason Tassone and Sgt. Treyor Brown (collectively “Defendants”) violated Plaintiffs’ constitutional rights during a traffic stop and subsequent arrest. Thereafter, Defendants filed a Motion for Summary Judgment requesting that Plaintiffs’ action be dismissed. (ECF No. 60.) This matter is before the court for review of the Magistrate Judge’s Report and Recommendation (“Report”) (ECF No. 70), filed on December 29, 2016, recommending that Defendants’ Motion for Summary Judgment be granted. The Report sets forth in detail the relevant facts and legal standards on this matter which the court incorporates herein without a recitation. The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(e) for the District of South Carolina. “The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination.” Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing Matthews v. Weber, 423 U.S. 261, 271 (1976)). Moreover, the court is charged with making a de novo determination of those portions of a report and recommendation to which specific objections are made, and the court may accept, reject, 1 or modify, in whole or in part, a magistrate judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Furthermore, objections to a report and recommendation must specifically identify portions of the report and the basis for those objections. Fed. R. Civ. P. 72(b). Plaintiffs were notified of their right to file timely objections to the Report. (ECF No. 70.) Plaintiffs filed untimely objections to the Report on January 19, 2017. (ECF No. 75.) However, pro se pleadings are accorded liberal construction and are held to a less stringent standard than those drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Notably, Plaintiffs’ objections were filed merely one day after the Clerk of Court terminated the deadline for objections. Therefore, the court accepts Plaintiffs’ objections. In their objections, Plaintiffs fail to specifically identify portions of the report to which they object. Instead, Plaintiffs generally allege that the Magistrate Judge “is unfair and prejudice towards the plaintiffs.” (ECF No. 75 at 2.) Furthermore, Plaintiffs assert that the Magistrate Judge has failed to respond to all motions that Plaintiffs previously filed with court regarding this matter. Specifically, Plaintiffs state that “…the magistrate judge never responded to any of Ray Mayo’s motions filed at the U.S. States District Court for the District of South Carolina. To this day there has not been any response to his motions.” (ECF No. 75 at 2.) After a thorough and careful review of the Report and the record in this case, the court finds that the Magistrate Judge has not unfairly prejudiced Plaintiffs. Plaintiffs filed numerous, repetitious motions with the court regarding this matter. Contrary to Plaintiffs’ assertions, the Magistrate Judge has timely responded to each and every motion that Plaintiffs filed. In addition, the court finds that the Magistrate Judge has issued a Report that accurately summarizes the facts and the law. Furthermore, the Report contains no clear error. 2 Therefore, the court ACCEPTS the Report and Recommendation. (ECF No. 70.) For the reasons articulated by the Magistrate Judge, it is ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 60) is granted and this action is dismissed.1 IT IS SO ORDERED. United States District Judge March 1, 2017 Columbia, South Carolina Defendants filed a motion to strike Plaintiffs’ response to summary judgment as untimely. (ECF No. 68.) In light of the dismissal of this action, such motion is denied as moot. 1 3

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