Canada v. Stirling et al

Filing 58

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the 34 Report and Recommendation of the Magistrate Judge. Plaintiff's claim regarding the alleged destruction of his property is DISMISSED without prejudice. Plaintiff's other claims as set forth in his Complaint will proceed. IT IS SO ORDERED. Signed by Honorable Donald C Coggins, Jr on 5/9/2018. (prou, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Kelvin A. Canada,

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Plaintiff,
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vs.
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Bryan P. Stirling, Michael McCall, Joette
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Scarborough, Willie Davis, Andrea Thompson, )
Vaughn Jackson,
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Defendants. )
_____________________________________

C/A No. 5:17-cv-02785-DCC

ORDER

This matter is before the Court on Plaintiff’s Complaint. ECF No. 1. In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was referred
to United States Magistrate Judge Kaymani D. West for pre-trial proceedings. On February
13, 2018, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending that Plaintiff’s claim regarding his damaged property be dismissed. ECF
No. 34. The Magistrate Judge advised Plaintiff of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so. Plaintiff
filed objections to the Report.
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 U.S.C. § 636(b). The Court will
review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of 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.” (citation omitted)).
The Report recommends that the Complaint be dismissed because Plaintiff has a
adequate State court remedy in the South Carolina Tort Claims Act. See Hudson v.
Palmer, 468 U.S. 533 (1984); Mora v. City of Gaithersburg, 519 F.3d 216, 230–31 (4th Cir.
2008). However, Plaintiff does not appear to object to this conclusion of the Report but
instead objects to the fact that the Magistrate did not address his other claims.
Accordingly, the Court reviews the portion of the Report concerning Plaintiff’s claim that his
property has been damaged for clear error. The Court finds that the Magistrate has
correctly stated and applied the law with respect to this claim.
CONCLUSION
Accordingly, the Court adopts the Report and Recommendation of the Magistrate
Judge. Plaintiff’s claim regarding the alleged destruction of his property is DISMISSED
without prejudice. Plaintiff’s other claims as set forth in his Complaint will proceed.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
May 9, 2018
Spartanburg, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and
4 of the Federal Rules of Appellate Procedure.