Major v. Greenville Housing Authority et al
Filing
114
ORDER RULING ON REPORT AND RECOMMENDATIONS Denying 14 Motion for Summary Judgment filed by Charles R Major, Jr; Denying 59 Motion for Extension of Time to File Response/Reply, filed by Charles R Major, Jr; and Denying motion to amend the complaint filed by Charles R Major, Jr. 48 Report and Recommendations is adopted in it's entirety. Signed by Honorable G Ross Anderson, Jr on 7/23/2012. (kric, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Charles R. Major, Jr.,
a/k/a Charles R. Major,
)
)
)
Plaintiff,
)
)
v.
)
)
Housing Authority of the City of Greenville;
)
Ms. Marian Todd;
)
and Mr. Mike Raymond,
)
)
Defendants.
)
_____________________________________ )
CA. No: 6:12-cv-00183-GRA-KFM
ORDER
(Written Opinion)
This matter comes before the Court for review of United States the Report and
Recommendation by Magistrate Judge Kevin F. McDonald, made in accordance with
28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e), D.S.C. Plaintiff Charles
R. Major, Jr. (“Plaintiff”) is commenced this action pro se on January 19, 2012,
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the Housing Authority of the City
of Greenville1 (“Housing Authority”) committed “Torts of Constitutional violations”
against him and “illegally” terminated his Department of Housing and Urban
Development (“HUD”) contract for housing assistance. See ECF No. 1. On February
3, 2012, Plaintiff filed a Motion for Summary Judgment. See ECF No. 14. On March
5, 2012, Defendants filed a Response in Opposition to Plaintiff’s Motion for Summary
Judgment, and subsequently filed an amended Response in Opposition on April 4,
2012. See ECF Nos. 26 & 46. Under established procedure in this judicial district,
1
Plaintiff incorrectly identifies this defendant as “Greenville Housing Authority” in his Complaint.
Page 1 of 7
Magistrate Judge McDonald made a careful review of the pro se complaint and
issued a Report and Recommendation (“R & R”), on April 11, 2012, recommending
that this Court deny Plaintiff’s Motion for Summary Judgment. See ECF No. 48.
Objections to the Report and Recommendation were due on May 3, 2012. See id.
Plaintiff filed a Motion for Extension of Time to file Objections and Partial Objections
to the R & R on May 4, 2012. See ECF Nos. 59 & 61. Plaintiff filed the final
Objections on May 18, 2012, submitting evidence for this Court to consider when
ruling on his Motion for Summary Judgment. See ECF No. 67. Defendants filed a
Reply in Opposition to Plaintiff’s partial Objections on June 4, 2012. See ECF No. 81.
For the reasons discussed herein, this Court DENIES Plaintiff’s Motion for an
Extension of Time to file Objections, DENIES Plaintiff’s Motion to Amend.
Furthermore, this Court adopts the magistrate’s Report and Recommendation in its
entirety, and DENIES Plaintiff’s Motion for Summary Judgment.
Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). A court may not construct the plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993), nor is a district court required to
recognize “obscure or extravagant claims defying the most concerted efforts to
unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985).
Page 2 of 7
Discussion
I. Motion for and Extension of Time to File Objections
Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, this Court may
grant Plaintiff an extension of time to file a responsive motion for good cause shown.
Plaintiff argues that an extension is necessary to allow him time to gather evidence in
support of his Motion for Summary Judgment.
After considering the record and
Plaintiff’s reasons for the extension, this Court finds that Plaintiff has failed to show
good cause. Therefore, this Court will deny his motion for an extension of time and
will not consider his Partial Objections filed on May 4, 2012, ECF No. 59, or his
Objections filed on May 18, 2012, ECF No. 67, in ruling on Plaintiff’s Motion for
Summary Judgment.
II. Report and Recommendation
Magistrate Judge McDonald recommends denying Plaintiff’s Motion for
Summary Judgment because Plaintiff has failed to present any evidence, which
establishes his claims and that a genuine issue of material fact exists as to Plaintiff’s
allegations. See ECF No. 48. The magistrate judge makes only a recommendation
to this Court.
The recommendation carries no presumptive weight, and the
responsibility to make a final determination remains with this Court.
Mathews v.
Weber, 423 U.S. 261, 270–71 (1976). This Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific
objection is made, and this Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1).
Page 3 of 7
This Court may also "receive further evidence or recommit the matter to the
magistrate with instructions." Id.
III. Plaintiff’s Objections to Magistrate’s Report and Recommendation
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and specifically identify the portions of the Report and
Recommendation to which the party objects and the basis for the objections. Fed R.
Civ. P. 72(b); see United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984);
Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir. 1985). “Courts have . . .
held de novo review to be unnecessary in . . . situations when a party makes general
and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendation.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). 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 Schronce, 727 F.2d at 94 &
n.4.
This Court has denied Plaintiff’s Motion for an Extension of Time to File
Objections; therefore, this Court finds that Plaintiff did not file timely objections. 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).
Therefore, this Court DENIES Plaintiff’s Motion for Summary Judgment.
IV. Motion to Amend Complaint
Applying the requisite liberal standard to the Plaintiff’s pro se objections, this
Court construes Plaintiff’s pro se Objections as a Motion to Amend Complaint
Page 4 of 7
pursuant to Rule 15(a)(2). Fed. R. Civ. P. 15(a)(2). Rule 15(a) declares that leave to
amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). “If
the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits.” Pittson Co. v. United States, 199 F.3d 694, 705 (4th Cir. 1999). “In the
absence of any apparent or declared reason - such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc. – the leave sought should,
as the rules require, be ‘freely given.’” Id. The court has discretion to grant or deny
the motion to amend; however, “outright refusal to grant the leave without any
justifying reason appearing for the denial” is an abuse of discretion and “inconsistent
with the spirit of the Federal Rules.” Id.
The instant motion is difficult to decipher, but it appears that Plaintiff is seeking
to make the following three amendments. First, Plaintiff seeks to “drop the cause of
action for mental distress (outrage) and proffer . . . a change of the outrage claim to
mental anguish.” Id. Second, Plaintiff seeks to add a claim for breach of contract
accompanied by fraudulent act. Id. Finally, Plaintiff seeks to amend the complaint to
add a claim for “fraudulent misrepresentation.” Id.
Page 5 of 7
This Court DENIES Plaintiff’s Motion to Amend finding that the Motion is
unduly delayed and futile.1 The scheduling order in this case, ECF No. 32, provides
that motions to amend pleadings were due by April 20, 2012. Plaintiff’s Motion to
Amend was filed on May 18, 2012. ECF No. 67. Accordingly, Plaintiff must show
good cause for the amendment of the original scheduling order. Rule 16(b) provides,
in pertinent part, “A schedule may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). Normally, “[g]ood cause under Rule 16(b)
exists when evidence supporting the proposed amendment would not have been
discovered in the exercise of reasonable diligence until after the amendment deadline
had passed.” Intersate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455,
460 (M.D.N.C. 2003) (citation omitted). The Plaintiff has made no such showing
here. Furthermore, it would be futile to permit Plaintiff to amend his pleadings to add
such claims as Plaintiff has not alleged any facts to support the additional claims.
Accordingly, the Motion to Amend is DENIED.
Conclusion
After reviewing the Report and Recommendation this Court finds that the
magistrate applied sound legal principles to the facts of this case. Therefore, this
Court adopts the magistrate’s Report and Recommendation in its entirety.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Extension of Time to
File Objections is DENIED.
1
This Court initially notes that Plaintiff has previously attempted to amend his complaint to change the
tort of intentional infliction of distress to mental anguish, which was denied by United States Magistrate
Judge McDonald in an order issued on May 24, 2012. See ECF No. 73.
Page 6 of 7
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Complaint is
DENIED.
IT IS SO ORDERED.
July 23 , 2012
Anderson, South Carolina
NOTICE OF RIGHT TO APPEAL
Plaintiff has the right to appeal this Order within thirty (30) days from the date
of the entry of this Order, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules
of Appellate Procedure, will waive the right to appeal.
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