Heyward v. South Carolina Department of Corrections

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION 9 . This action is dismissed without prejudice and without issuance and service of process. The Clerk shall docket the plaintiffs motion to dismiss (ECF No. 12) as moot Signed by Honorable Joseph F Anderson, Jr on 3/10/2015. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Benjamin Heyward,

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Plaintiff,
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v.
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South Carolina Department of Corrections,
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Defendant.
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_______________________________________ )

C/A No. 6:15-859-JFA

ORDER

The pro se plaintiff, Benjamin Heyward, brings this action pursuant to
42 U.S.C. § 1983, alleging that he was subjected to excessive force while he was an inmate
at the Lieber Correctional Institution, part of the South Carolina Department of Corrections
(“SCDC”).
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein he suggests that the court should summarily dismiss this action
because the named defendant, the South Carolina Department of Corrections, is immune
from suit under the Eleventh Amendment to the United States Constitution. The Report sets
forth in detail the relevant facts and standards of law on this matter, and the court
incorporates such without a recitation.
The plaintiff was advised of his right to file objections to the Report. The plaintiff
1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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. Mathews
v. Weber, 423 U.S. 261 (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 to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1).

instead filed a motion to dismiss the action contending that he “made a mistake and sent his
1983 section to be filed. Plaintiff was informed that he cannot file his 1983 when he has a
pending complaint in the lower court concerning his 1983.” Plaintiff also indicates that the
lower court is going to dismiss his complaint due to not having the filing fee, but that he is
going to include the claims of this action into his state court action.
As the Magistrate Judge notes in his Report, the South Carolina Department of
Corrections, the only defendant named by the plaintiff in this action, is immune from suit
under the Eleventh Amendment.
After a careful review of the record, the applicable law, the Report and
Recommendation, and the plaintiff’s motion to dismiss this action, the court finds that the
Magistrate Judge’s recommendation is proper and it is incorporated herein by reference.
Accordingly, this action is dismissed without prejudice and without issuance and service of
process. The Clerk shall docket the plaintiff’s motion to dismiss (ECF No. 12) as moot.
IT IS SO ORDERED.

March 10, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge