Ellison et al v. Proffit et al

Filing 45

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ACCEPTS the Magistrate Judge's recommendations and incorporates the Report (ECF No. 43 ) by specific reference into this Order. It is therefore ORDERED that Defendant& #039;s motion to dismiss (ECF No. 8 ) is GRANTED as to Plaintiffs' claims of malicious prosecution relating to the hindering and resisting charges and § 1983 civil conspiracy, and DENIED as to Plaintiffs' claims for § 1983 malicious prosecution as to the breach-of-peace charges and supervisory liability, along with Defendants' assertion of Eleventh-Amendment Immunity. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 2/13/2017. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Michelle Ellison and David Ellison,
Plaintiffs,
vs.
Deputy Brian Proffit; John Does; Glen
Kirby, and Kenney Boone,
Defendants.
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) Civil Action No. 4:16-847-BHH
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ORDER AND OPINION
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Plaintiffs Michelle Ellison and David Ellison (“Plaintiffs”), through counsel, brought
this civil action pursuant to 42 U.S.C § 1983. (ECF No. 1.) In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina, this matter was
referred to United States Magistrate Judge Kaymani D. West for pretrial handling. The
matter is now before this Court for review of the Report and Recommendation (“Report”)
issued by the Magistrate Judge on January 24, 2017. (ECF No. 43.) In her Report, the
Magistrate Judge recommends that Defendant’s motion to dismiss be granted in part, and
denied in part. (Id. at 17.) Specifically, the Magistrate Judge recommends that Plaintiff’s
claims of malicious prosecution relating to the hindering and resisting charges and § 1983
civil conspiracy should be dismissed. The Magistrate Judge further recommends, however,
that at this early stage of the litigation, Defendants’ Motion to Dismiss Plaintiffs’ claims for
§ 1983 malicious prosecution as to the breach-of-peace charges and supervisory liability,
along with Defendants’ assertion of Eleventh-Amendment Immunity, should be denied.
(Id.) Objections to the Report were due by February 7, 2017. Neither Defendants nor
Plaintiffs have filed objections.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The

Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the
absence of a timely filed objection, a district court need not conduct a 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
After a careful review of the record, the applicable law, and the Report of the
Magistrate Judge, the Court finds no clear error. Accordingly, the Court ACCEPTS the
Magistrate Judge’s recommendations and incorporates the Report (ECF No. 43) by specific
reference into this Order. It is therefore
ORDERED that Defendant's motion to dismiss (ECF No. 8) is GRANTED as to
Plaintiff's claims of malicious prosecution relating to the hindering and resisting charges
and § 1983 civil conspiracy, and DENIED as to Plaintiffs’ claims for § 1983 malicious
prosecution as to the breach-of-peace charges and supervisory liability, along with
Defendants’ assertion of Eleventh-Amendment Immunity.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
February 13, 2017
Greenville, South Carolina
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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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