Davis v. South Carolina Department of Corrections

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION. The Magistrate Judges R&R 12 is rejected. IT IS THEREFORE ORDERED that Plaintiffs motion for leave to amend his complaint to add Defendants Director Ozmint, Warden Padula, and Offic er McBride, ECF No. 15 is GRANTED. A proper amended complaint adding only these three new Defendants must be filed within fifteen (15) days of the issuance of this order. If Plaintiff does not timely file an amended complaint, this action shall be subject to dismissal. This matter is RECOMMITED to the Magistrate Judge for further proceedings consistent with this order, including screening the new Defendants pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Signed by Honorable R Bryan Harwell on 10/11/2013. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James H. Davis, # 312333,
Plaintiff,
v.
South Carolina Department of
Corrections, at Lee County
Correctional Institution,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.: 4:13-cv-01508-RBH

ORDER

Plaintiff James H. Davis, a state prisoner proceeding pro se, filed this civil action under 42
U.S.C. § 1983 and against the South Carolina Department of Corrections (“SCDC”). He alleges
that he was subjected to cruel and unusual punishment during a prison riot in 2007.1 The matter is
now before the Court for review after the issuance of the Report and Recommendation (“R&R”) of
United States Magistrate Judge Thomas E. Rogers, III.2 The Magistrate Judge recommends that this
Court dismiss Plaintiff’s complaint without prejudice for lack of subject matter jurisdiction and for
failure to state a claim upon which relief may be granted.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may

1

The allegations of Plaintiff’s complaint are adequately represented in the Magistrate Judge’s R&R.
R&R 1–2, ECF No. 12.
2
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.

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. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
On August 26, 2013, the Magistrate Judge issued his R&R, recommending the dismissal of
Plaintiff’s complaint against Defendant SCDC. R&R 6, ECF No. 12. Specifically, the Magistrate
Judge concluded that SCDC was not a proper Defendant under the Eleventh Amendment and
§ 1983. Id. at 4–5. Instead of filing objections to the R&R, Plaintiff filed a motion for leave to
amend his complaint. He requests the addition of the following parties: Director Ozmint, Warden
Padula, and Officer McBride. Mot. to Amend 1, ECF No. 15. He argues that he was able to
discover the identity of the parties involved after he filed his complaint. Id. at 2.
Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, “[a] party may amend its
pleading once as a matter of course within . . . 21 days after serving it.” For any subsequent
amendment, a party must seek leave from the Court. Fed. R. Civ. P. 15(a)(2). “The court should
freely give leave when justice so requires.” Id. Here, because Plaintiff’s complaint has not yet been

2

served on Defendants, Plaintiff may amend his complaint to add the individual parties. As no
defendant has been served, the Court finds no prejudice.
CONCLUSION
The Court has thoroughly reviewed Plaintiff’s complaint, the Magistrate Judge’s R&R,
Plaintiff’s motion, and applicable law. For the reasons stated above, the Magistrate Judge’s R&R is
rejected.

IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to amend his

complaint to add Defendants Director Ozmint, Warden Padula, and Officer McBride, ECF No. 15 is
GRANTED. A proper amended complaint adding only these three new Defendants must be filed
within fifteen (15) days of the issuance of this order. If Plaintiff does not timely file an amended
complaint, this action shall be subject to dismissal.

This matter is RECOMMITED to the

Magistrate Judge for further proceedings consistent with this order, including screening the new
Defendants pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
October 11, 2013

3