Brown v. South Carolina, State of

Filing 15

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 11 Report and Recommendation, summarily dismissing complaint without prejudice and without issuance and service of process. Signed by Honorable Margaret B Seymour on 6/28/2018. (mdea )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Orlando Ira Brown,
Plaintiff,
v.
State of South Carolina,
Defendant.

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C/A No.: 3:18-1195-MBS

ORDER AND OPINION

On May 2, 2018, Plaintiff Orlando Ira Brown, proceeding pro se and in forma pauperis,
brought this action alleging discrimination in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et seq. ECF No. 1. On that same day, Plaintiff also filed a
Motion for Summary Judgment. ECF No. 6. In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett
for pretrial handling.
Plaintiff asserts that he is disabled. ECF No. 1-1 at 2. According to an order from the
Probate Court issued on June 13, 2013, Plaintiff was required to abstain from drugs and alcohol
as conditions of his treatment. ECF No. 1-1 at 1. Plaintiff contends that alcohol consumption is
a civil liberty shared by all American over the age of 21, and that the court’s denial of that
liberty, based on his disability, is discriminatory and violates the ADA. ECF No. 6. To support
his claim, Plaintiff relies on 42 U.S.C § 12132 of the ADA, which states, “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” Plaintiff seeks a compensatory damage award of $500
million. ECF No. 1 at 5.
On May 22, 2018, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending that Plaintiff’s Complaint be summarily dismissed without prejudice and without
issuance and service of process. ECF No. 11 at 3. The Magistrate Judge notes that § 12131 bars
states from discriminating against the disabled by excluding them from participation in, or
denying them benefits to, public programs and services. Id. (emphasis added). According to the
Magistrate Judge, Plaintiff’s claim regarding private consumption of alcohol is based on a
personal activity, not a public program or service, and thus is not a cognizable claim under the
ADA. Id.
Plaintiff timely filed his objections to the Report. ECF No. 14. Plaintiff makes two
assertions. First, he claims that “[p]ersonal activity of alcohol consumption is a benefit of the
public program of permitting and guaranteeing personal activity of alcohol as a civil right.” Id.
at 1. Second, Plaintiff asserts that “[t]he 21st Amendment . . . along with state laws, are
governmental works, which qualifies the choice to participate in personal activity of alcohol
consumption, as a benefit of said service.” Id. Thus, Plaintiff concludes, he has asserted a
cognizable claim under the ADA.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight and the responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court reviews de novo only those
portions of a Magistrate Judge’s report and recommendation to which specific objections are
filed, and reviews those portions which are not objected to—including those portions to which
only “general and conclusory” objections have been made—for clear error. Diamond v. Colonial

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Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th
Cir. 1983); Opriano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1).
The court has thoroughly reviewed the record. The court finds that Plaintiff's objections
are meritless. Plaintiff has failed to state a claim for discrimination under the ADA. Thus, the
court concurs in the Report and Recommendation and incorporates it herein by reference.
Plaintiff’s Complaint is summarily dismissed without prejudice and without issuance and service
of process.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
The Hon. Margaret B. Seymour
Senior United States District Court Judge
June 28, 2018
Columbia, South Carolina

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