Garrett v. Ozmint et al

Filing 49

REPORT AND RECOMMENDATION recommending 22 MOTION to Dismiss filed by SCDC be granted. Objections to R&R due by 11/6/2008. Signed by Magistrate Judge William M Catoe on 10/20/08. (Attachments: # 1 Objection notice)(ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA G R E E N V IL L E DIVISION

R o b e r t W . Garrett (aka R o b e rt W illie Garrett), #267175,

Plaintiff, vs. D ire c to r Jon Ozmint; Mrs. L. Odem; M r s . V. Jenkins; Mr. James E. Sligh, J r.; Mr. Caser; Mrs. Gilmore; and SCDC, Defendants.

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Civil Action No. 6:08-0399-HMH-W M C REPORT OF MAGISTRATE JUDGE

T h is matter is before the court on motion of defendant South Carolina D e p a rtm e n t of Corrections ("SCDC") to dismiss. In his complaint, the plaintiff, a state p ris o n e r who is proceeding pro se, alleges violations of his constitutional rights under the E ig h th and Fourteenth Amendments of the United States Constitution. The plaintiff alleges th a t the defendants violated his rights by falsely imprisoning him due to good time and work c re d its not properly being applied to his incarceration. P u r s u a n t to the provisions of Title 28, United States Code, Section 636(b)(1)(B), a n d Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial m a tte rs in cases filed under Title 42, United States Code, Section 1983, and submit findings a n d recommendations to the District Court. O n May 5, 2008, defendant SCDC filed a motion to dismiss. By order filed on M a y 6, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), the plaintiff was a d vis e d of the summary judgment dismissal procedure and the possible consequences if he

fa ile d to adequately respond to the motion. The plaintiff filed his response to the motion to d is m is s on May 21, 2008. T h e SCDC argues that it is immune from suit in this Section 1983 action p u rs u a n t to the Eleventh Amendment to the United States Constitution, which provides: "The J u d ic ia l power of the United States shall not be construed to extend to any suit in law or e q u ity, commenced or prosecuted against one of the United States by Citizens of another S ta te , or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. In Will v. M ic h ig a n Department of State Police, 491 U.S. 58 (1989), the Supreme Court discussed the a p p lic a tio n of the Eleventh Amendment in Section 1983 actions, stating: S e c tio n 1983 provides a federal forum to remedy many d e p riv a tio n s of civil liberties, but it does not provide a federal fo ru m for litigants who seek a remedy against a State for alleged d e p r iv a tio n s of civil liberties. The Eleventh Amendment bars s u c h suits unless the State has waived its immunity . . . or unless C o n g re s s has exercised its undoubted power under § 5 of the F o u rte e n th Amendment to override that immunity. Id . at 66 (citations omitted). The SCDC is an agency of the State of South Carolina. The S u p re m e Court found that state agencies, divisions, departments, and officials are entitled to Eleventh Amendment immunity. Id. at 70. Although a State may consent to suit in a federal d is tric t court, which serves to waive sovereign immunity, Lapides v. Board of Regents, 535 U .S . 613 (2002), the State of South Carolina has specifically denied consent to suit in federal d is tric t court. See South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-20(e). In his response to the SCDC's motion to dismiss, the plaintiff states that he "will s tip u la te that the defendant SCDC should be removed from this case." W h e re fo re , based upon the foregoing, it is recommended that the SCDC's m o tio n to dismiss be granted.

O c to b e r 20, 2008 G r e e n v ille , South Carolina

s /W illia m M. Catoe U n ite d States Magistrate Judge

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