Timmons v. Smith

Filing 36

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report (DE 20 ) and incorporates it here by reference. It is, therefore, ORDERED that Plaintiff's Complaint is dismissed without prejudice and without issuance and service of process and any pending motions are otherwise terminated as moot. Signed by Honorable Joseph Dawson, III on 9/25/2024. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Wondell Timmons, Jr.,
Plaintiff,
vs.
Corporal Smith,
Defendant.

Case No.: 4:24-cv-0937-JD-KDW

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ORDER AND OPINION

This matter is before the Court with the Report and Recommendation
(“Report”) of United States Magistrate Judge Kaymani D. West, made under 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) of the District of South Carolina.1
(DE 20.) Plaintiff Wondell Timmons, Jr. (“Plaintiff” or “Timmons”), who is proceeding
pro se, brought this action alleging a violation of his civil rights by Defendant
Corporal Smith (“Smith” or “Defendant”). (DE 1.)
Plaintiff alleges he was assaulted by Heyward Dale on February 16, 2024,
between 11:30 a.m. and 12:30 p.m., while Plaintiff was a passenger on a City of
Marion bus. (DE 1, p. 1.) Plaintiff states Dale was sweeping the bus when the broom
hit Plaintiff’s left leg while Dale was sweeping behind and beneath the seat. (Id.)

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See 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 Report and Recommendation to which 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 with instructions. 28 U.S.C. § 636(b)(1).
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Plaintiff claims Smith violated federal law by refusing to file an appropriate City of
Marion Police Department incident report on February 19, 2024. (Id. at 7.)
On April 17, 2024, the Magistrate Judge issued the Report recommending
Plaintiff’s Complaint be dismissed because, although Plaintiff indicates the court has
jurisdiction over his claims pursuant to the diversity statute, 28 U.S.C. § 1332,
“Plaintiff’s Complaint fails to demonstrate complete diversity of parties as Plaintiff
alleges that he and Defendant are citizens of South Carolina,” such that “Plaintiff has
not shown the court has diversity jurisdiction over his claims; therefore, his
Complaint is subject to summary dismissal.” (DE 20, pp. 3-4.)
Timmons objected to the Report on April 23, 2024 (DE 23); however, to be
actionable, objections to the Report and Recommendation must be specific. Failure
to file specific objections constitutes a waiver of a party’s right to further judicial
review, including appellate review, if the recommendation is accepted by the district
judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). “The
Supreme Court has expressly upheld the validity of such a waiver rule, explaining
that ‘the filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues—factual and legal—that are at the heart of the parties’
dispute.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (2005)
(citing Thomas v. Arn, 474 U.S. 140, 147 (1985) (emphasis added)). In the absence of
specific objections to the Report and Recommendation of the magistrate judge, this
Court is not required to give any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

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Specifically, Plaintiff states, “I, the plaintiff Wondell Timmons Jr. is ordering
with U.S. District Court of South Carolina to file a order of objection with case name
Timmons v. Smith. I, the plaintiff Wondell Timmons Jr. order of objection is so
recommended with U.S. District Court of South Carolina.” (DE 23, p. 1.) However,
nowhere in Timmons’s objection does he address jurisdiction, the basis for the
Report’s recommendation of dismissal. Therefore, the Court overrules the objection.
Accordingly, after thoroughly reviewing the Report and Recommendation and the
record, the Court adopts the Report (DE 20) and incorporates it here by reference.
It is, therefore, ORDERED that Plaintiff’s Complaint is dismissed without
prejudice and without issuance and service of process and any pending motions are
otherwise terminated as moot.
IT IS SO ORDERED.
Joseph Dawson, III
United States District Judge
Florence, South Carolina
September 25, 2024

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within
thirty (30) days from this date, under Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

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