Workman v. Perry et al

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATION for 13 . The Court adopts the R & R [ECF No. 13], and DISMISSES this action without prejudice and without issuance and service of process. Signed by Honorable R Bryan Harwell on 6/1/2018. (kric, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Olandio Ray Workman,

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Plaintiff,
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v.
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Robert Perry, Investigator; and
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James P. Walsh, Lawyer,
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Defendants.
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______________________________)

Civil Action No.: 6:17-cv-03416-RBH

ORDER

Plaintiff Olandio Ray Workman, a state pretrial detainee proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983. See ECF No. 1. The matter is before the Court for consideration of
Plaintiff’s objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge
Kevin F. McDonald, who recommends summarily dismissing this action without prejudice.1 See ECF
Nos. 13 & 15.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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); Fed. R. Civ. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report

1

The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.).

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 [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
Discussion2
Plaintiff, presently detained at the Greenville County Detention Center on state charges,3 has
filed a § 1983 complaint against Defendant Robert Perry, who is a police investigator involved in
Plaintiff’s ongoing state criminal case, and Defendant James Walsh, who is an attorney defending Perry
in another § 1983 case filed by Plaintiff in this Court, see Workman v. Perry, No. 6:17-cv-02136-RBH
(D.S.C.) (“the Related Case”). See ECF No. 1. Plaintiff’s allegations relate in part to an affidavit given
by Defendant Perry in support of a motion for summary judgment in the Related Case; Plaintiff alleges
Defendant Perry gave “false, and misleading, incomplete testimony” in that affidavit.4 See ECF No.
1 at pp. 5, 7–9. The Magistrate Judge has reviewed Plaintiff’s complaint and recommends summarily

2

The R & R summarizes the factual and procedural background of this case, as well as the applicable legal
standards.
3

See Workman v. Dir. of Greenville Cty. Det. Ctr., No. 6:17-cv-03046-RBH-KFM, 2017 WL 8785509, at
*2 (D.S.C. Dec. 6, 2017) (summarizing Plaintiff’s five pending state charges), adopted by, 2018 WL 1730948
(D.S.C. Apr. 10, 2018). See generally Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)
(“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).
4

In the Related Case, Defendant Walsh filed a motion for summary judgment on behalf of Defendant Perry;
an affidavit given by Defendant Perry was one of the exhibits. See Workman v. Perry, No. 6:17-cv-02136-RBH, at
ECF Nos. 29 & 29-1 (D.S.C.). The Magistrate Judge has entered an R & R recommending granting Defendant
Perry’s motion for summary judgment. See id. at ECF No. 65.

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dismissing this action because (1) Plaintiff cannot maintain a civil action for perjury, (2) no diversity
jurisdiction exists for any libel or slander claims, and (3) Plaintiff has failed to state a viable due process
claim. See R & R at pp. 2–3. Furthermore, the Magistrate Judge recommends declining to
automatically give Plaintiff leave to amend because amendment would not cure the defects in his
complaint. See id. at p. 3. Plaintiff objects to the Magistrate Judge’s recommendations. See Pl.’s Objs.
[ECF No. 15].
First, Plaintiff appears to argue his claim for perjury is actually a claim for civil contempt. See
Pl.’s Objs. at p. 1. However, “[t]here is no such thing as an independent cause of action for civil
contempt,” Finn v. Schiller, 72 F.3d 1182, 1188 (4th Cir. 1996) (quoting Blalock v. United States, 844
F.2d 1546, 1550 (11th Cir. 1988)). Rather, “civil contempt is a device used to coerce compliance with
an in personam order of the court which has been entered in a pending case.” Blalock, 844 F.2d at 1550
(citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949), and Gompers v. Buck’s Stove &
Range Co., 221 U.S. 418, 441–42 (1911)). Accordingly, Plaintiff cannot maintain a claim for civil
contempt.
Plaintiff next contends he has stated a due process claim by asserting Defendants “alter[ed] [the]
NCIC[5] sheet” relating to Plaintiff’s prior convictions.6 See Pl.’s Objs. at p. 2.

However, as the

Magistrate Judge explains, Plaintiff is essentially attacking statements made by Defendant Perry in the
context of Plaintiff’s ongoing state criminal prosecution, and Plaintiff’s dispute with such statements

5

NCIC is an abbreviation for the National Crime Information Center, which “is a computerized index of
criminal justice information available to, and updated by, federal, state, and local law enforcement agents.” United
States v. McDowell, 745 F.3d 115, 118 (4th Cir. 2014).
6

Similarly, in his complaint, Plaintiff alleges “Officer Perry and James Walsh altered the NCIC sheet [and]
violated my 14th amendment right.” ECF No. 1 at p. 8. Plaintiff appears to be referring to a police report (prepared
by Defendant Perry) that discusses the basis for charging Plaintiff. See id. (citing Workman v. Perry, No.
6:17-cv-02136-RBH, at ECF No. 29-1 at p. 30 (D.S.C.)).

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does not implicate due process concerns here. See R & R at p. 3.
Plaintiff further asserts that “not anywhere did I say libel and slander” in his complaint, and
instead seeks to bring a “1st amendment retaliation claim” based on Defendants’ filing a “false and
altered misleading incomplete report on court document in a civil action.” See Pl.’s Objs. at p. 2. To
the extent Plaintiff claims Defendants violated his First Amendment rights by making filings in the
Related Case (such as Defendant Perry’s affidavit), such an allegation does not state a First Amendment
retaliation claim. See generally Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (listing the elements
of a § 1983 First Amendment retaliation claim).7
Finally, Plaintiff objects to the Magistrate Judge’s recommendation that the Court should decline
to automatically give Plaintiff leave to amend. See Pl.’s Objs. at p. 2. However, the Court agrees with
the Magistrate Judge that Plaintiff cannot cure the defects in his complaint by mere amendment. See
generally Goode v. Cent. Virginia Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino
Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). The Court
therefore declines to automatically give Plaintiff leave to amend and will dismiss this action instead.
Conclusion
For the foregoing reasons, the Court overrules Plaintiff’s objections, adopts the R & R [ECF No.
13], and DISMISSES this action without prejudice and without issuance and service of process.

7

Although not discussed by the Magistrate Judge, the Court notes “witness absolute immunity applies to
testimony given in a judicial proceeding.” Brice v. Nkaru, 220 F.3d 233, 239 n.6 (4th Cir. 2000); see also Chapman
v. Hurley, No. 6:17-cv-01072-TMC-KFM, 2017 WL 9289391, at *2 (D.S.C. May 5, 2017), adopted by, 2018 WL
459412 (D.S.C. Jan. 18, 2018) (“[An] absolute privilege exists as to any utterance arising out of the judicial
proceeding and having any reasonable relation to it, including preliminary steps leading to judicial action of any
official nature provided those steps bear reasonable relation to it. The preliminary steps leading up to a formal
judicial proceeding can include pleadings, letters between counsel in litigation, depositions, briefs[,] or informal
affidavits sworn before someone other than an officer of the court.” (alteration in original, internal citations
omitted, and emphasis added)). Thus, the statements made in Defendant Perry’s affidavit are privileged because they
were made in the Related Case and are reasonably related to it.

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IT IS SO ORDERED.
Florence, South Carolina
June 1, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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