Primus v. Byars
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION: the court respectfully declines to adopt the Magistrate Judge's Report and Recommendation 11 . Accordingly, the plaintiff shall be granted leave to amend his complaint. Such amended complaint must be filed within thirty (30) days of the date of this order. The Clerk shall return this matter to Magistrate Judge for further proceedings. Signed by Honorable Joseph F Anderson, Jr on 9/11/2013. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
James Anthony Primus,
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Plaintiff,
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v.
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Mr. William Byers,
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Defendant.
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______________________________________ )
C/A No. 4:13-768-JFA-TER
ORDER
The pro se plaintiff, James Anthony Primus, is a state inmate with the South Carolina
Department of Corrections (SCDC). He brings this action pursuant to 42 U.S.C. § 19831
claiming that his due process rights were violated as a result of the placement of an alleged
victim witness notification in his SCDC file. He contends that this notification requirement
causes hardships with regard to transfers and job assignments.
The Magistrate Judge assigned to this action2 has prepared a Report and
Recommendation and opines the complaint should be dismissed for failure to state a claim.
The Report sets forth in detail the relevant facts and standards of law on this matter, and the
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The plaintiff has filed this action in forma pauperis under 28 U.S.C. § 1915.
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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
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court incorporates such without a recitation.
The plaintiff was advised of his right to file objections to the Report and
Recommendation and he has timely done so. The court has reviewed the objections and will
address them herein.
The Magistrate Judge correctly suggests that the plaintiff has failed to allege any facts
showing how the sole defendant, SCDC Director William Byars, was personally involved in
any of the factual allegations claiming a constitutional violation which is a necessary element
of a § 1983 claim against a government official in his individual capacity.
The Magistrate Judge also suggests that the complaint fails to identify the violation
of any federal right in the plaintiff’s allegations of due process violations based on changes
made to the plaintiff’s SCDC file concerning notification of a non-victim upon plaintiff’s
release.
In his objection memorandum, the plaintiff requests that the court allow him leave to
clarify his initial complaint. Applying the requisite liberal standard to the plaintiff’s pro se
objections, this court construes plaintiff’s objections as a motion to amend his complaint
pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. Rule 15(a) declares that
leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a)(2). “If
the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits.” Pittson Co. v.
United States, 199 F.3d 694, 705 (4th Cir. 1999). “In the absence of any apparent or declared
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reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be ‘freely given.’ “ Id.; see also Gordon v. Leeke,
574 F.2d 1147, 1152–53 (4th Cir.1978) (“What might be a meritorious claim on the part of
a pro se litigant unversed in the law should not be defeated without affording the pleader a
reasonable opportunity to articulate his cause of action.”).
In light of the liberal construction accorded to pro se pleadings, the court concludes
that plaintiff’s objections should be construed as a motion to amend the complaint, and
should be granted as such.
After a careful review of the record, the applicable law, and because the court will
allow the plaintiff to amend his complaint, the court respectfully declines to adopt the
Magistrate Judge’s Report and Recommendation.
Accordingly, the plaintiff shall be granted leave to amend his complaint. Such
amended complaint must be filed within thirty (30) days of the date of this order. The Clerk
shall return this matter to Magistrate Judge for further proceedings.
IT IS SO ORDERED.
Joseph F. Anderson, Jr.
United States District Judge
September 11, 2013
Columbia, South Carolina
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