Peterson v. Mueller
ORDER RULING ON REPORT AND RECOMMENDATION adopting 9 Report and Recommendation: IT IS THEREFORE ORDERED that Plaintiffs complaint is summarily dismissed without prejudice and without issuance and service of process. Signed by Honorable G Ross Anderson, Jr on 10/21/13. (alew, ) Modified on 10/21/2013 to add spacing(alew, ).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Robbie Wayne Peterson,
Steve Mueller, Sheriff of Cherokee
C/A No.: 7:13-cv-02155-GRA
This matter comes before this Court for review of United States Magistrate
Judge Paige J. Gossett’s Report and Recommendation made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) DSC, and filed on September
19, 2013. ECF No. 9. Plaintiff Robbie Wayne Peterson (“Plaintiff”), an inmate with
the South Carolina Department of Corrections at the Tyger River Correctional
Institution proceeding pro se and in forma pauperis, filed this action pursuant to 42
U.S.C. § 1983 on August 6, 2013.1 ECF No. 1. Under established procedure in this
judicial district, Magistrate Judge Gossett made a careful review of the pro se
complaint and now recommends that this Court summarily dismiss Plaintiff’s
complaint without prejudice and without issuance and service of process. ECF No. 9.
Plaintiff did not object to the Magistrate Judge’s Report and Recommendation. For
the reasons discussed herein, this Court adopts the Magistrate Judge’s
recommendation in its entirety and summarily dismisses this case.
A pro se prisoner’s petition is deemed filed at the time that it is delivered to the prison mailroom to be
forwarded to the district court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In the current case,
the envelope containing Plaintiff’s complaint was stamped as delivered to the mailroom on August 6,
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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).
However, a district court may not construct the plaintiff's legal
arguments for him, Small v. Endicott, 998 F.2d 411 (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), cert. denied, 475 U.S. 1088 (1986).
Plaintiff brings this claim in forma pauperis under 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal court without prepaying
the administrative costs of proceeding with the lawsuit. See ECF No. 8. To protect
against possible abuses of this privilege, the statute requires a district court to
dismiss the case upon a finding that the action “is frivolous or malicious,” “fails to
state a claim on which relief may be granted,” or “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Plaintiff’s complaint arises out of an arrest by the Cherokee County Sheriff’s
Department on August 22, 2011, for the offense of criminal sexual conduct. ECF No.
1. Plaintiff’s complaint alleges that no evidence of this crime existed, the Sheriff’s
Department “failed to conduct an independent investigation,” and the Sheriff’s
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Department failed to properly obtain a warrant before arresting Plaintiff. Id. Plaintiff
states that after “four months” of imprisonment, the charges against him were
dismissed on November 18, 2011. Id. Plaintiff asserts that information regarding his
arrest was “posted in the newspaper and in the media.” Id. Plaintiff raises claims of
“false imprisonment, false arrest, deprivation of liberty, and damages to reputation.”
Plaintiff seeks monetary relief including punitive damages, court costs, and
attorney fees. Id.
The Magistrate Judge makes only a recommendation to this Court.
recommendation has 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 judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge
with instructions." Id.
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and must 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
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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 specific objections to the Report and
Recommendation, this Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
The failure to file objections to the Report and Recommendation waives any
further right to appeal when the parties have been warned that they must object to
preserve appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); see also
Carter v. Pritchard, 34 F. App’x 108, 108 (4th Cir. 2002) (per curiam). In the present
case, Plaintiff received a copy of the Report and Recommendation, which contained a
“Notice of Right to File Objections to Report and Recommendation.” ECF No. 9. The
Notice warned that “[f]ailure to timely file specific written objections . . . [results] in
waiver of the right to appeal from a judgment of the District Court based upon such
Recommendation.” Id. October 7, 2013 was the deadline for filing objections. See
ECF No. 9. Plaintiff did not file any objections to the Magistrate Judge’s Report and
After a review of the record, this Court finds that the Magistrate Judge’s Report
and Recommendation accurately summarizes the case and the applicable law.
Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Plaintiff’s complaint is summarily
dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.
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October 21 , 2013
Anderson, South Carolina
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