Anderson v. Brown et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION. The Report and Recommendation of the Magistrate Judge 13 is adopted and incorporated by reference. Therefore, it is ORDERED that Plaintiff's complaint is DISMISSED without prejudice and without service of process. IT IS FURTHER ORDERED that Plaintiff's motion to remand is DENIED. Signed by Honorable R Bryan Harwell on 08/01/2014. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Willie Moses Anderson, #170797

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Plaintiff,
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v.
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Eric Brown; Torts Claim; Wardens, )
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Defendants.
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Civil Action No.: 4:14-cv-1840-RBH

ORDER

Plaintiff Willie Moses Anderson, #170797 (“Plaintiff”), a state prisoner proceeding pro se,
filed this action alleging violations of his constitutional rights. See Compl., ECF No. 1. Plaintiff
asserts that his stereo was damaged during an altercation between his cellmate and Defendant Eric
Brown, during which his radio fell off a table and was damaged. See id. The matter is now before
the Court after the issuance of the Report and Recommendation (“R & R”) of United States
Magistrate Judge Thomas E. Rogers, III.1 In the R & R, the Magistrate Judge recommends that the
Court dismiss Plaintiff’s complaint without prejudice and without service of process. See R & R,
ECF No. 13 at 4.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court.

The

recommendation has no presumptive weight. The responsibility to make a final determination
remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The district

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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. The Magistrate Judge’s review of Plaintiff’s
complaint was conducted pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and
1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); but see Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).

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 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 district court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, 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.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court reviews only for clear error in the absence
of a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir.
2005).
DISCUSSION
In the R & R, the Magistrate Judge recommends the Court dismiss Plaintiff’s complaint
without prejudice and without service of process. See ECF No. 13 at 4. The Magistrate Judge
noted that Plaintiff’s property damage claim is cognizable under the South Carolina Tort Claims
Act, S.C. Code Ann. § 15-78-10, et seq. See id. at 3. The Magistrate Judge then explained that
various cases from inside and outside the Fourth Circuit have held that the availability of a state
court action for an alleged loss of property provides adequate procedural due process. See id. at 4
(collecting authorities). Thus, the Magistrate Judge reasoned, dismissal of this federal action was
appropriate.
Plaintiff filed a one page document in response to the R & R. See Pl.’s Resp., ECF No. 15 at
1. In his response, Plaintiff did not object to the R & R. Instead, he indicated that he now
“respectfully move[s] to have the Court to assert its authority and refer this action to the “Court of

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Common Pleas” in Bishopville, South Carolina.” Id. Plaintiff appears to agree with the Magistrate
Judge’s recommended finding that his property loss claim is “only cognizable under the South
Carolina Tort Claims Act.” Id.
The Court agrees with the Magistrate Judge and Plaintiff that the South Carolina Court of
Common Pleas appears to be the appropriate venue for this matter. The United States District
Court, however, may not remand a case that was never removed from state court. See Levin v.
Commerce Energy, Inc., 560 U.S. 413, 428 (2010) (“[F]ederal tribunals lack authority to remand to
the state court system an action initiated in federal court.”); see also Payne v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 75 Fed. App’x 903, 906 (4th Cir. 2003) (“A case originally filed in federal
court cannot be remanded to state court.”). Thus, the Court cannot grant the relief sought by
Plaintiff. Nevertheless, because the Court agrees with the Magistrate Judge that the matter should
be dismissed without prejudice, Plaintiff will not be precluded from filing a new action in the South
Carolina Court of Common Pleas.
No party has otherwise objected to the R & R. In the absence of objections to a Report and
Recommendation of the Magistrate Judge, this Court is not required to give any explanation for
adopting the recommendations. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct de novo review, but instead must ‘only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation’”) (quoting
Fed. R. Civ. P. 72 advisory committee’s note).
After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and incorporated

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by reference.

Therefore, it is ORDERED that Plaintiff's complaint is DISMISSED without

prejudice and without service of process. IT IS FURTHER ORDERED that Plaintiff’s motion to
remand is DENIED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
August 1, 2014

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