Abebe v. Green et al

Filing 87

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Report and Recommendation 11 and incorporates it herein by reference. Plaintiff's motion for a temporary restraining order, ECF No. 3 , is denied and the claims against the above-referenced thirty-three Defendants and the State of South Carolina are dismissed. The Magistrate Judge's February 22, 2012 order is affirmed. The matter is recommitted to the Magistrate Judge for additional pretrial handling. Signed by Chief Judge Margaret B Seymour on 9/19/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Unula Boo Shawn Abebe,

) C/A No. 5:11-02750-MBS-KDW
)
Plaintiff,
)
)
vs.
)
ORDER AND OPINION
)
Maurice Green; Lieutenant Scott; Karen
)
McCullough; Sharonda Sutton; Lieutenant
)
Hudson; Kenneth Parker; Robert Stevenson;
)
Lula Johnson; Al Walker; Nurse Johnson;
)
Lieutenant S. Jackson; Percy Jones; Lieutenant
)
Carter; South Carolina; Willie Simmons;
)
Lieutenant T. Johnson; Sergeant Devon Scott;
)
Sergeant Fogal; Sergeant H. Wright; Sergeant
)
J.C.Williams; Sergeant Glass; Sergeant
)
Oakman; Sergeant R. Jones; Lieutenant Faley;
)
Corporal Furgal; Corporal Dooley; Corporal Corey )
Beckett; Larry Catlidge; Jermaine McCoy; John
)
English; Clifton Davenport; M. Brady; Officer
)
McDaniels; Officer Cox; Officer Stone; Officer
)
Sorez; Officer Roberts; Officer Brown; John Irmo; )
J. Dixon; T. Edmond; Corporal Manley; Officer
)
Hamleton; Officer Moses; Roselyn Elerby; Ann
)
Hallman; Investigator Hurt; Sergeant T. Esterline; )
Officer Williams; Lieutenant R. Jefferson; Aaron )
Wilson; Officer Fant; Officer Hardy; Officer
)
Grittle; Officer Ms. Cook; Officer Mr.Cook;
)
Officer Dickson; Doctor John B. Tomarchio;
)
William Byars,
)
Defendants.
)
__________________________________________)
On October 12, 2011, Unula Boo Shawn Abebe (“Plaintiff”), a state prisoner, brought
this action pro se pursuant to 28 U.S.C. § 1983, alleging that he was subject to unconstitutional
conditions of confinement. On the same day, Plaintiff filed a motion for a temporary restraining
order seeking to have Defendants provide him with a mattress. ECF No. 3. On November 4,
2011, Plaintiff filed a document entitled “criminal complaint” that was docketed as an amended
complaint. ECF No. 9. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule

73.02(B)(2), this matter was referred to United States Magistrate Judge Paige J. Gossett for
pretrial handling.
On December 5, 2011, the Magistrate Judge issued a Report and Recommendation in
which she recommended that Plaintiff’s motion for a temporary restraining order be denied
ECF No. 11. The Magistrate Judge also reviewed the amended complaint pursuant to the
procedural provisions of 28 U.S.C. §§ 1915 and 1915A. The Magistrate Judge recommended
that the complaint be summarily dismissed without prejudice as to thirty-three Defendants on the
grounds that Plaintiff failed to include allegations against them.1 Id. The Magistrate Judge also
recommended that Plaintiff’s claims against the State of South Carolina be summarily dismissed
on the basis of Eleventh Amendment immunity. Id. The Magistrate Judge filed
contemporaneously with her Report and Recommendation an order requiring Plaintiff to provide
service documents for the eleven Defendants named in the amended complaint not subject to
dismissal.2 ECF No. 12. The Magistrate Judge granted Plaintiff until January 3, 2012, to bring
the case into proper form. Id.
Instead of complying with the Magistrate Judge’s order, on December 19, 2011, Plaintiff
filed a motion for relief from order and a document entitled “judicial notice.” ECF No. 16 & 17.
Plaintiff argued that the document docketed on November 4, 2011, as Plaintiff’s amended

1

The defendants for whom dismissal was recommended are Defendants Sergeant Devon Scott; Sergeant Fogal;
Sergeant H. W right; Sergeant Glass; Sergeant Oakman; Sergeant R. Jones; Lieutenant Faley; Jermaine McCoy; John
English; Clifton Davenport; M. Brady; Officer McDaniels; Officer Cox; Officer Stone; Officer Roberts; Officer
Brown; John Irmo; J. Dixon; T. Edmond; Corporal Manley; Officer Hamleton; Officer Moses; Roselyn Elerby; Ann
Hallman; Investigator Hurt; Aaron W ilson; Officer Fant; Officer Hardy; Officer Grittle; Officer Ms. Cook; Officer
Mr. Cook; Officer Dickson; and W illiam Byars.

2

The defendants for whom Plaintiff was instructed to provide service documents are
Defendants Lieutenant T. Johnson; Sergeant J.C. W illiams; Corporal Furgal; Corporal Dooley;
Corporal Corey Beckett; Doctor John B. Tomarchio; Larry Catlidge; Officer Sorez; Sergeant T.
Esterline; Officer W illiams; and Lieutenant R. Jefferson, all of whom were named in the amended complaint.

2

complaint was meant to commence a criminal action against Defendants named therein. The
same day, Plaintiff also filed objections to the Magistrate Judge’s Report and Recommendation.
ECF No. 18. On February 22, 2012, the Magistrate Judge denied Plaintiff’s motion for relief
from order and motion for judicial notice.3 ECF No. 53. On July 26, 2012, Plaintiff appealed the
Magistrate Judge’s February 22, 2012 order, which the Fourth Circuit dismissed for lack of
jurisdiction because the order was not a final order. Abebe v. Scott, No. 12-6452, 2012 WL
3111872 (4th Cir., Aug. 1, 2012) (per curiam).
DISCUSSION
A.

Appeal from the Magistrate Judge’s Order
In Plaintiff’s objections, he reiterates the argument put forth in his motion for relief from

order and motion for judicial notice. Again, Plaintiff complains that the document docketed on
November 4, 2011, as Plaintiff’s amended complaint was intended to institute a criminal action
against Defendants named therein. ECF No. 17.
The court understands this objection as directed towards the Magistrate Judge’s ruling on
February 22, 2012, rather than towards her Report and Recommendation. Thus, the court
construes the objection as an appeal of the Magistrate Judge’s February 22, 2012 order pursuant
to FED . R. CIV . P. 72(a), which provides:
When a pretrial matter not dispositive of a party's claim or defense
is referred to a magistrate judge to hear and decide, the magistrate
judge must promptly conduct the required proceedings and, when
appropriate, issue a written order stating the decision. A party may
serve and file objections to the order within 14 days after being
served with a copy. A party may not assign as error a defect in the
order not timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.
3

Magistrate Judge Paige J. Gossett is no longer assigned to this case. The case was reassigned to United
States Magistrate Judge Kaymani D. W est on January 2, 2012.

3

The Magistrate Judge treated Plaintiff’s “criminal complaint” as a civil complaint
because a private citizen cannot institute a criminal case. See Diamond v. Charles, 476 U.S. 54,
64 (1986) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). To the extent Plaintiff
expresses concern that the “criminal complaint” will supersede Plaintiff’s lengthier and more
detailed original complaint, that concern is unwarranted. Plaintiff attached to his “criminal
complaint” the original complaint. The Magistrate Judge considered the allegations both in the
original complaint and in the “criminal complaint” when evaluating Plaintiff’s motion for a
temporary restraining order. The court has thoroughly reviewed the record and discerns no
grounds upon which to find that the Magistrate Judge’s order was clearly erroneous or contrary to
law, nor does Plaintiff articulate any such grounds. The Magistrate Judge’s February 22, 2012
order is affirmed.
B.

Report and Recommendation
The court now considers Plaintiff’s objections to the Magistrate Judge’s Report and

Recommendation. The Magistrate Judge makes only a recommendation to this court. The
recommendation has no presumptive weight. The responsibility for making a final determination
remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate
Judge. 28 U.S.C. § 636(b) (1). This court may also receive further evidence or recommit the
matter to the Magistrate Judge with instructions. Id. This 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.
Plaintiff objects to the Magistrate Judge’s recommendation that his motion for a
temporary restraining order be denied. Plaintiff’s objection is stated in general terms and fails to
identify a specific error. The district court need not conduct a de novo review when a party
4

makes only general and conclusory objections that do not direct the court to a specific error in the
Magistrate Judge's proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44,
47–48 (4th Cir.1982). Plaintiff has not objected to the Magistrate Judge’s recommendation that
the claims against the thirty-three above-referenced Defendants and the State of South Carolina
be summarily dismissed. Nevertheless, the court has thoroughly reviewed the record and
discerns no error in the Magistrate Judge’s findings.
CONCLUSION
The court adopts the Report and Recommendation and incorporates it herein by reference.
Plaintiff’s motion for a temporary restraining order, ECF No. 3, is denied and the claims against
the above-referenced thirty-three Defendants and the State of South Carolina are dismissed. The
Magistrate Judge’s February 22, 2012 order is affirmed. The matter is recommitted to the
Magistrate Judge for additional pretrial handling.
IT IS ORDERED.
S/ Margaret B. Seymour
Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
September 19, 2012

5