Parson v. Miles et al

Filing 39

ORDER: The Court has thoroughly reviewed the entire record, including Plaintiff's Second Amended Complaint, the R & R, and Plaintiff's objections. For the foregoing reasons, the Court overrules Plaintiff's obj ections, adopts and incorporates the Report and Recommendation [ECF No. 29 ] by reference, and DISMISSES Defendants Collins, Smith, Atkinson, Foxworth, Shaw, Floyd, Troy, and Harper without prejudice and without issuance and service of process. The Court recommits this case to the Magistrate Judge for further pretrial handling. IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 6/22/2017. (prou, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Arnold Parson, Jr.,

)
)
Plaintiff,
)
)
v.
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Darren Miles, Buddy Collins, Elista H.
)
Smith, John Q. Atkinson, Jr., Thomas E.
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Shaw, Allen W. Floyd, Milton W. Troy, II, )
Tim Harper, Danny Lee Herring, John
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Doe 1–18, Jane Doe 1–2, County of Marion, )
and Oscar Foxworth,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 4:17-cv-00708-RBH-KDW

ORDER

Plaintiff Arnold Parson, Jr., proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983
against the above-captioned Defendants. The matter is before the Court for resolution of Plaintiff’s
objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Kaymani
D. West, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 for the District
of South Carolina.1 See R & R [ECF No. 29]; Pl.’s Objs. [ECF No. 34].
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
1

The Magistrate Judge reviewed Plaintiff’s Second Amended Complaint 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) (“Principles requiring generous construction of pro se complaints are not, however,
without limits. Gordon directs district courts to construe pro se complaints liberally. It does not require those courts
to conjure up questions never squarely presented to them.”).

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 must engage in 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 [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
Discussion
The Magistrate Judge recommends that the Court summarily dismiss Defendants Collins, Smith,
Atkinson, Foxworth, Shaw, Floyd, Troy, and Harper without prejudice because Plaintiff’s Second
Amended Complaint contains no substantive allegations of wrongdoing by these defendants. R & R
at 2–5; see ECF No. 24 [complaint]. Plaintiff objects only to the dismissal of Defendant Harper,
arguing Harper must be a named party in order for service to be perfected on Defendant Marion County
(on which service has been authorized). Pl.’s Objs. at 1–2. Plaintiff indicates Harper is the Chief
Administrative Officer of Marion County. Id. Plaintiff also states he “reserves the right to adjoin and
serve the Clerk Sabrina Davis as proper party to receive service of process for the County of Marion
in accords with Fed. R. Civ. P. 4(d)(6).”2 Id. at 2.

2

The Court notes there is no Rule “4(d)(6)” in the Federal Rules of Civil Procedure. Plaintiff may be
referring to Rule 4(d)(6) of the South Carolina Rules of Civil Procedure— which governs service on governmental
subdivisions such as counties— but that state rule does not apply to this federal action.

2

The Court readily disposes of Plaintiff’s objections. As the Magistrate Judge explains, county
officials such as Defendant Harper do not need to be “named as defendants in order to effect service
of process on Defendant Marion County.” R & R at 3. In other words, Marion County can be served
without Harper (or Davis) being a named defendant. Regardless, Plaintiff’s arguments are moot
because the Magistrate Judge authorized service of process on Marion County,3 the Clerk issued a
summons for Marion County to be served by the U.S. Marshal, and Marion County responded to
Plaintiff’s Second Amended Complaint by filing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). See ECF Nos. 28, 31, & 36. Thus, it is apparent that Defendant Marion County
has been served.
Conclusion
The Court has thoroughly reviewed the entire record, including Plaintiff’s Second Amended
Complaint, the R & R, and Plaintiff’s objections. For the foregoing reasons, the Court overrules
Plaintiff’s objections, adopts and incorporates the R & R [ECF No. 29] by reference, and DISMISSES
Defendants Collins, Smith, Atkinson, Foxworth, Shaw, Floyd, Troy, and Harper without prejudice and
without issuance and service of process. The Court recommits this case to the Magistrate Judge for
further pretrial handling.
IT IS SO ORDERED.
Florence, South Carolina
June 22, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

3

The Magistrate Judge also authorized service on Defendants Miles, Herring, John Doe 1–18, and Jane Doe
1–2. See ECF Nos. 28 & 31.

3