Cutner v. SCDC et al
ORDER RULING ON REPORT AND RECOMMENDATION. Plaintiffs motion to amend his complaint (Dkt. No. 33) to abandon his federal claims and allege only state tort claims is granted. The Court declines to exercise supplemental jurisdiction over Plaintiffs state law claims. This case is dismissed. Signed by Honorable Richard M Gergel on 9/13/2017. (kric, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Asst. Warden Stephan,
Asst. Warden Washington,
Case No. : 6: 17-cv-104 2
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No. 37) recommending that this Court grant Plaintiffs motion to amend
his complaint 1 (Dkt. No. 33) and decline to exercise supplemental jurisdiction over Plaintiffs
state law claims. For the reasons set forth below, this Court adopts the R. & R. as the order of the
Court. Plaintiffs motion to amend his complaint to abandon his federal claims (Dkt. No. 33) is
granted. This case is dismissed.
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
Plaintiff styled his motion as a motion to remand . The Magistrate construed his motion as a motion to
amend because this case was originally filed in thi s Court so cannot be remanded to state court.
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't ofSocial Services, 901 F.2d 387 (4th Cir. 1990).
b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See 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. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).
Where the plaintiff fails to file any specific objections, "a district court need not conduct a de
novo review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to ·accept the recommendation." See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).
Plaintiff is proceeding pro se. He alleges in his complaint that defendants used excessive
force against him, were deliberately indifferent to his serious medical needs, and violated his
right to free speech. (Dkt. No. 12.) Plaintiff later filed a motion explaining that he filed his action
in the "wrong" court and that he intended to file a state tort claim against defendants in the South
Carolina Court of Common Pleas. (Dkt. No. 33.) The Magistrate has recommended that this
Court grant Plaintiffs motion and allow him to amend his complaint to abandon his federal
claims if he wishes to pursue only state law claims in state court. Plaintiff has not filed any
objections to the R. & R. This Court finds that the Magistrate has correctly applied the
controlling law to the facts of this case.
For the reasons set forth above, this Court adopts the R. & R. (Dkt. No. 37) as the order of
the Court. Plaintiffs motion to amend his complaint (Dkt. No. 33) to abandon his federal claims
and allege only state tort claims is granted. The Court declines to exercise supplemental
jurisdiction over Plaintiffs state law claims. This case is dismissed.
AND IT IS SO ORDERED.
United States D strict Court Judge
, 201 7
Charleston, South Carolina
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