Brown v. Copeland et al
ORDER Adopting 22 Report and Recommendation. It is therefore ORDERED that Defendants: the Chief of Police of the Laurens Police Department or the City of Laurens, the Clinton Police Department or the Chief of the Clinton Po lice Department, Judge Thomas L. Copeland, and Victoria Q. Turner, are dismissed without prejudice and without issuance and service of process. Furthermore, Plaintiff's 28 Motion for an Extension is GRANTED. Signed by Honorable Timothy M Cain on 12/14/12. (kmca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Nicholas Alec Brown,
Thomas L. Copeland, Judge; Detective )
Sergeant Walter Bentley; Lt. White of )
Clinton Police Dept.; K. Anderson,
Officer of Clinton; Clinton Police
Department; Laurens Police
Department; Chief of Police or City;
Victoria Q. Tuner a/k/a Turner,
C/A No. 6:12-2512-TMC-JDA
Plaintiff, Nicholas Alec Brown (“Plaintiff”), a state prisoner proceeding pro se
brings this action under 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis
under 28 U.S.C. § 1915.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d),
D.S.C., all pre-trial proceedings were referred to a Magistrate Judge.1 On November
15, 2012, Magistrate Judge Jacquelyn D. Austin issued a Report and Recommendation
("Report") recommending that the Complaint be dismissed without prejudice. (Dkt. #
22). The Magistrate Judge provided Plaintiff a notice advising him of his right to file
objections to the Report by December 3, 2012. (Dkt. # 22 at 9). On December 3, 3012,
Plaintiff filed a motion for an extension of time within which to file his objections (Dkt. #
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the court. 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 objection is made, and the court may accept, reject, or modify,
in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1).
28), and then on December 12, 2012, prior to the court ruling on this motion, Plaintiff
filed objections to the Report. (Dkt. # 31-1).
Plaintiff’s motion for an extension is
granted, and the court will review his objections to the report.
The court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id. However, the court
need not conduct a de novo review when a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In
the absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are
reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
The Magistrate Judge recommended that several Defendants, the Chief of Police
of the Laurens Police Department or the City of Laurens, the Clinton Police Department
or the Chief of the Clinton Police Department, Judge Thomas L. Copeland, and Victoria
Q. Turner, be dismissed without issuance and service of process. (Report at 1, 7-8).
The Report noted that the action against the remaining Defendants was proceeding.2
The Plaintiff has filed three specific objections. In his first objection, Plaintiff
states he is not suing buildings, but rather “unknown person[s] involved in either of the
two departments having to do with the action at bar.” (Objections at 1). He elaborates
that he is seeking to hold the chiefs of police of both the Laurens County and Clinton
Police Departments liable for failing to properly investigate and failing to properly train
their officers and investigators. (Objections at 2-3). However, as the Magistrate Judge
noted there are no factual allegations in the Complaint which would support such a
In a separate order, the court authorized the service of the Complaint on
Defendants Sergeant Walter Bentley, Lt. White, and Officer K. Anderson. (Dkt. # 21).
claim. (Report at 5). Accordingly, this objection is without merit.
In his second objection, Plaintiff contends that the Magistrate Judge erred in
recommending that Defendant Copeland should be summarily dismissed based upon
judicial immunity. (Objections at 4). Plaintiff acknowledges that judges are entitled to
absolute immunity for judicial acts. Id. However, he contends that judges may be sued
for administrative, legislative, or executive acts. Id.
He then states that Defendant
Copeland should not have bonded his case over to General Sessions because evidence
had been presented to him which showed Plaintiff did not commit the crime. Id.
Absolute judicial immunity applies to all acts that are basic and integral parts of
the judicial function. Mierles v. Waco, 502 U.S. 9, 12 (1991). Judicial “immunity is
overcome in only two sets of circumstances. First, a judge is not immune from liability
for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a
judge is not immune for actions, though judicial in nature, taken in the complete
absence of all jurisdiction.” Id. at 11-12 (Internal citations omitted). Plaintiff has not
made any allegations to support a conclusion that Defendant Copeland acted in a
manner so as to strip him of judicial immunity. Accordingly, this objection is without
In his third objection, Plaintiff contends that the Magistrate Judge erred in
recommending that Defendant Turner be summarily dismissed because she did not act
under the color of state law.
(Objections at 5). Plaintiff alleges Turner made false
accusations against him which led to his being charged with a crime. Id. He contends
that when Turner told police officers that a crime had taken place, Turner was acting in
concert with the police and her actions are attributable to the state. Id.
Whether a private individual's action rises to the level of state action depends on
the relationship between the activity and the state. The inquiry involves “whether there
is a sufficiently close nexus between the State and the challenged action . . . so that the
action of the latter may be fairly treated as that of the State itself.” Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 351 (1974). It is also well settled that “a private
person does not act under color of state law simply because he invokes state authority.”
Brummett v. Camble, 946 F.2d 1178, 1184 (5th Cir. 1991). See also Auster Oil & Gas
Co., Inc. v. Stream, 764 F.2d 381, 388 (5th Cir. 1985). The reporting of a crime to local
law enforcement authorities by Defendant Turner does not constitute action under color
of state law. See Anderson v. Caldwell, C/A No. 3:10–1906–CMC–JRM, 2010 WL
3724752, *3 (D.S.C. Aug.18, 2010). Accordingly, this objection is without merit.
After a thorough review of the Report and the record in this case pursuant to the
standard set forth above, the court adopts the Report and incorporates it herein. It is
therefore ORDERED that Defendants the Chief of Police of the Laurens Police
Department or the City of Laurens, the Clinton Police Department or the Chief of the
Clinton Police Department, Judge Thomas L. Copeland, and Victoria Q. Turner, are
dismissed without prejudice and without issuance and service of process. Furthermore,
Plaintiff’s Motion for an Extension (Dkt. # 28) is GRANTED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
December 14, 2012
Greenville, 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.
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