Frye v. South Carolina Department of Corrections, The et al

Filing 65

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION: After a thorough review of the Report and Recommendation and the record in this case, the Court adopts the Report (DE 30 ) and incorporates it here by reference. It is, therefore, ORDERED that Plaintiff's claims are dismissed without leave for further amendment. Signed by Honorable Joseph Dawson, III on 3/12/2025. (prou, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Marion Wade Frye,

)
)
Plaintiff,
)
)
vs.
)
)
The South Carolina Department of
)
Corrections; Director Bryan Sterling;
)
Kenneth Nelson; Randy Ward; Franklin
)
Miller; Contraband Correctional Officer
)
DeGroff; Correctional Officer Maddox;
)
Department of Mental Health/Behavioral )
Health Services; Sholanda Jackson; Mental )
Health Officer Hughes; Qualified Mental
)
Health Personnel Thomas; Qualified Mental )
Health Personnel Fouty; Qualified Mental )
Health Personnel Tolsen; Bruce Lobitz;
)
Viola Thorton; Nurse Massey; Nurse Harris; )
)
South Carolina Department of Labor,
Licensing, and Regulation; The State Board )
)
of Medical Examiners; Board Executive
)
Jessica Beise; Prisma Health Hospital,
individually and officially; Image Care LLC; )
)
The South Carolina Department of
)
Corrections Department of Mental
Health/Behavior Health Services Office; The )
South Carolina Department of Corrections )
Department of Medical Services Director; )
Office of General Counsel; Prisma Health )
)
Hospital Sergeon, Servants, License
Physicians, and Employees John Does 1 – 5; )
and Image Care LLC Radiologist, License )
Physicians, Employees, Servants, John Does )
)
1 – 5,
)
)
Defendants.

Case No.: 5:24-cv-1893-JD-KDW

ORDER AND OPINION

This matter is before the Court with the Report and Recommendation
(“Report”) of United States Magistrate Judge Kaymani D. West (DE 30), made in

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accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) of the District of
South Carolina concerning the Magistrate Judge’s initial review of Plaintiff Marion
Wade Frye’s (“Plaintiff” or “Frye”) pleadings. 1
A. Background
The Report and Recommendation sets forth the relevant facts and legal
standards, which the Court incorporates without a complete recitation. In any event,
the Court provides this summary, taken as true from the Complaint.
Frye, proceeding pro se, sued Defendants the South Carolina Department of
Corrections et al. (“Defendants”) under 42 U.S.C. Section 1983, alleging Defendants
violated several of his constitutional rights. 2 (DE 17.) Plaintiff says that on October
11, 2022, he had septoplasty surgery at Prisma Health Hospital while he was in the
care, custody, and control of the SCDC. (DE 17 at 15.) Plaintiff claims a wireless
medical device was implanted during his surgery. (Id.) Plaintiff contends this device
utilizes artificial intelligence and machine learning/deep learning technology to
search and seize the information stored in his mind. (Id.) Plaintiff alleges that public
officials shared his

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).
1

On May 3, 2024, the Magistrate Judge issued an order notifying Plaintiff his
Complaint was subject to summary dismissal because he failed to allege sufficient factual
allegations to state a claim. (DE 10.) The order further advised Plaintiff he had until May 17,
2024, to file an amended complaint or otherwise cure the identified deficiencies in his
pleadings. (Id.) Plaintiff filed an Amended Complaint on May 20, 2024. (DE 17.)
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personal information, thoughts, silent evoked utterances and intimate
images, by coupling brain wave activity, with pattern recognition
algorithms as neural decoders to an implanted medical device, to a
brain-computer interface system that picks up signals from the wireless
medical device, and shared among other individuals, as specific
thoughts, silent evoked utterances, and recalled memories cross my
train of thought.
(Id. at 12–13.) Plaintiff claims he can hear public officials and inmates conversing
about the “distinct details” when he has a train of thought or when a thought crosses
his mind although these individuals should not know this information. (Id. at 13.)
Plaintiff contends that someone with political power and influence continues to order
and allow officials to torment Plaintiff and is risking Plaintiff’s safety by allowing
state and local officials to share this information with other prisoners. (Id.) Plaintiff
says these same officials have denied his request to be placed in protective custody.
(Id.)
Plaintiff also claimed that the officials were trying to cover up a medical
malpractice lawsuit because after this medical device became lodged in his right side,
the administration began to torture him and revealed the truth after a long period.
(Id.) Plaintiff says the people controlling the medical device are sending pain
sensations to certain parts of his body and are laughing about causing him pain. (Id.)
Plaintiff claims the operation of this device is also causing him psychological injury
and mental anguish. (Id. at 14.)
Plaintiff has also filed these motions: Motion for Copies at No Expense (DE 15),
Motion for Assistance re Proper Form Order and Notice, Motion for Extension of Time
to file response/reply to Proper Form Order (DE 16), Motion to Change Venue (DE 19

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and 24), Motion for Protection Order (DE 23), Motion for Extension of Time, Motion
for Copies (DE 25), and Motion to Appoint Counsel (DE 26).
B. Report and Recommendation
The Magistrate Judge reviewed Plaintiff’s pro se complaint under the
procedural provisions of 28 U.S.C. § 1915 and under a less stringent standard than
those drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Accordingly, on June 18, 2024, the
Magistrate Judge issued the Report based on an initial review of the pleadings. The
Report said,
A federal court lacks subject matter jurisdiction over an “obviously
frivolous complaint.” Chong Su Yi v. Soc. Sec. Admin., 554 F. App’x 247,
248 (4th Cir. 2014) (affirming dismissal of factually and legally frivolous
claims in a fee-paid pro se case); see also Holloway v. Pagan River
Dockside Seafood, Inc., 669 F.3d 448, 452–53 (4th Cir. 2012) (noting a
federal court lacks subject matter jurisdiction over a complaint raising
claims “‘so insubstantial, implausible . . . or otherwise completely devoid
of merit as not to involve a federal controversy’”).
(DE 30 at 4.) That said, the Report recommended dismissing Plaintiff’s Complaint
because “Plaintiff’s Amended Complaint fails to correct the deficiencies, and like the
original Complaint, fails to state a claim upon which relief can be granted.” (DE 30
at 5.) The Report also recommends denying Plaintiff’s pending motions (DE 15, 16,
19, 23, 25, and 26) as moot because “the granting of any of the listed motions would
not change the recommendations . . . .” (DE 30 at 5.) On July 8, 2024, Plaintiff objected
to the Report. (DE 34.)

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C. Legal Standard
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).
D. Plaintiff’s Objections
Plaintiff makes thirteen objections to the Report, which the Court will address
in turn. Objections 1 and 2 question the Report’s “Conclusion and Recommendation”
that this “action be dismissed without leave for further amendment.” (DE 34 at 1.)
Plaintiff appears to suggest that he has unanswered outstanding requests to SCDC
staff (and others). This objection does not refute or address the Report’s findings or
conclusions. The objection is, therefore, overruled.
Objections 3, 4, 5, and 10 involve Plaintiff’s motions to appoint counsel (DE 26)
and a protective order (DE 23). Plaintiff contends, among other things, that he “has
a 10th Grade Level of Education and GED.” (DE 34 at 4.) The Report ably found that
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granting Plaintiff’s motions, including appointment of counsel, would not change the
recommendation.
Whether to appoint counsel for indigent plaintiffs in civil cases falls
within the discretion of district courts. However, it is an abuse of
discretion to decline to appoint counsel where the case of an indigent
plaintiff presents exceptional circumstances. Whether such
circumstances exist depends on the type and complexity of the case, and
the abilities of the individuals bringing it. Courts should appoint counsel
[i]f it is apparent . . . that a pro se litigant has a colorable claim but lacks
the capacity to present it.
Riddick v. Barber, 109 F.4th 639 (4th Cir. 2024) (internal citations and quotations
omitted.) Plaintiff has shown he has a basic understanding of the rules of procedure,
but his factual claims, whether drafted by counsel or not, lack plausibility.
Accordingly, given the facts here, exceptional circumstances do not exist. Thus,
Plaintiff’s objections are overruled.
Objections 6, 7, 8, 9, 11, 12, and 13 involve matters that do not address the
plausibility of the allegations in Plaintiff’s amended complaint. Therefore, these
objections are overruled.
E. Conclusion
Accordingly, after a thorough review of the Report and Recommendation and
the record in this case, the Court adopts the Report (DE 30) and incorporates it here
by reference.
It is, therefore, ORDERED that Plaintiff’s claims are dismissed without leave
for further amendment.

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IT IS SO ORDERED.
Joseph Dawson, III
United States District Judge
Florence, South Carolina
March 12, 2025

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of 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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