Gibson v. Foster et al

Filing 48

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS the Report (ECF No. 25 ), and DISMISSES Plaintiff's Complaint (ECF No. 1 ) as to NCDC and Foster. IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 2/1/2018. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Timothy W. Gibson,

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Plaintiff,
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v.
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Sheriff Lee Foster,
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Sgt. Richardson, and
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Newberry County Detention Center,
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Defendants. )
____________________________________)

Civil Action No.: 5:17-cv-01333-JMC
ORDER

This matter is before the court upon review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 25), filed on August 7, 2017, recommending that the court
dismiss Plaintiff’s Complaint without prejudice as to Defendant Newberry County Detention
Center (“NCDC”) and Defendant Lee Foster (“Foster”) for failure to state a plausible claim under
42 U.S.C. § 1983.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(e) for the District of South Carolina. The Magistrate Judge makes
only a recommendation to this court, which has no presumptive weight. The responsibility to
make a final determination remains with this 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
to which specific objections are made. Fed. R. Civ. P. 72(b)(2)-(3).
The parties were advised of their right to file objections to the Report. (ECF No. 25 at 7.)
However, neither party filed any objections to the Report.
In the absence of objections to the Magistrate Judge’s Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199

(4th Cir. 1983). Rather, “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) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, failure to file specific written objections to the Report results in a party’s waiver of
the right to appeal from the judgment of the District Court based upon such recommendation. 28
U.S.C. § 636(b)(1); see Wells v. Shriners Hosp., 109 F.3d 198, 200 (4th Cir. 1997) (“[t]he Supreme
Court has authorized the waiver rule that we enforce. . . . ‘[A] court of appeals may adopt a rule
conditioning appeal, when taken from a district court judgment that adopts a magistrate's
recommendation, upon the filing of objections with the district court identifying those issues on
which further review is desired.’”) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).
After a thorough review of the Report and the record in this case, the court finds the Report
provides an accurate summary of the facts and law. Plaintiff has failed to state a plausible claim
for relief pursuant to 42 U.S.C. § 1983 as against NCDC and Foster. Only “persons” may act
under the color of state law; therefore, a defendant in a § 1983 action must qualify as a person.
See 42 U.S.C. § 1983; see also Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690 n.55 (1978)
(defining “persons” to include individuals, and corporate and political bodies). Because NCDC is
a complex of inanimate buildings, and not a “person” as defined by the law, dismissal is
appropriate. In addition, Plaintiff fails to allege any wrongdoing by Foster, thus pursuant to 28
U.S.C. § 1915(e)(2)(B), Plaintiff’s Complaint should be dismissed as to Foster. “In the absence
of allegations of personal wrongdoing or of sufficient knowledge of the wrongdoing of others, the
Complaint should be [dismissed] insofar as it makes [ ] Foster a party.” (ECF No. 25 at 6.) For

these reasons, the court ACCEPTS the Report (ECF No. 25), and DISMISSES Plaintiff’s
Complaint (ECF No. 1) as to NCDC and Foster.
IT IS SO ORDERED.

United States District Judge
February 1, 2018
Columbia, South Carolina