Boyd et al v. Lewis et al

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION 20 . The action is DISMISSED without prejudice and without issuance and service of process. Signed by Honorable Timothy M Cain on 9/8/2021. (kric, )

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Entry Number 27

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Yolanda Yvette Boyd and Louvenia )
)
Rogers,
)
)
Plaintiffs,
)
)
vs.
)
The Honorable Judge Mary Geiger )
Lewis; Assistant United States )
Attorney Elizabeth Jean Howard; )
United States Probation Officer Robert )
F. Woods, Jr.; and United States )
)
Attorney William N. Nettles,
)
)
Defendants.
_________________________________)

Civil Action No. 7:21-cv-00893-TMC

ORDER

Plaintiffs Yolanda Yvette Boyd (“Boyd”) and Louvenia Rogers (“Rogers”) (collectively,
“Plaintiffs”), proceeding pro se and in forma pauperis, brought this action pursuant to Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging that the Defendants have
engaged in the malicious prosecution of Vincent Rogers (“Vincent”)—Boyd’s son and Roger’s
grandson. (ECF Nos. 1, 3, 10). The case was referred to a magistrate judge for all pretrial
proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.).
Now before the court is the magistrate judge’s Report and Recommendation (“Report”),
recommending that the court summarily dismiss this action without prejudice and without issuance
and service of process. (ECF No. 20). Plaintiffs filed objections to the Report on June 28, 2021,
(ECF No. 25), and this matter is now ripe for review.
BACKGROUND
In the Report, the magistrate judge sets forth the relevant facts and legal standards, which
are incorporated herein by reference. See (ECF No. 20 at 1–2). Briefly, Plaintiffs allege that
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Defendants Howard and Nettles engaged in malicious prosecution and prosecutorial misconduct
by requesting an illegally enhanced sentence for Vincent, that Defendant Woods failed to object
to the illegal sentencing recommendation, and that Judge Lewis was aware of the misconduct and
failed to correct it. (ECF No. 1 at 2, 10–11). As a result of Vincent’s allegedly illegal detainment,
Plaintiffs assert that they have suffered severe pain and suffering. Id. at 9, 10, 11. Accordingly,
Plaintiffs seek to recover pecuniary damages in the amount of fifty million dollars
($50,000,000.00). Id. at 12.
STANDARD OF REVIEW
The recommendations set forth in the Report have no presumptive weight, and this court
remains responsible for making a final determination in this matter. Wimmer v. Cook, 774 F.2d
68, 72 (4th Cir. 1985) (quoting 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 a specific
objection is made, and the court may accept, reject, 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). However, the court need only review for clear error “those portions which are not
objected to—including those portions to which only ‘general and conclusory’ objections have been
made[.]” Dunlap v. TM Trucking of the Carolinas, LLC, 288 F. Supp. 3d 654, 662 (D.S.C. 2017).
“An objection is specific if it ‘enables the district judge to focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute.’” Id. at 662 n.6 (quoting United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, Known As:
2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)). On the other hand, objections
which merely restate arguments already presented to and ruled on by the magistrate judge or the
court do not constitute specific objections. See, e.g., Howard v. Saul, 408 F. Supp. 3d 721, 726

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(D.S.C. 2019) (noting “[c]ourts will not find specific objections where parties ‘merely restate word
for word or rehash the same arguments presented in their [earlier] filings’”); Ashworth v.
Cartledge, Civ. A. No. 6:11-cv-01472-JMC, 2012 WL 931084, at *1 (D.S.C. March 19, 2012)
(noting that objections which were “merely almost verbatim restatements of arguments made in
his response in opposition to Respondent’s Motion for Summary Judgment . . . do not alert the
court to matters which were erroneously considered by the Magistrate Judge”). Furthermore, in
the absence of specific objections to the Report, the court is not required to give any explanation
for adopting the magistrate judge’s recommendation. Greenspan v. Brothers Prop. Corp., 103 F.
Supp. 3d 734, 737 (D.S.C. 2015) (citing Camby v. Davis, 718 F.2d 198, 199–200 (4th Cir. 1983)).
Additionally, since Plaintiffs are proceeding pro se, this court is charged with construing
their filings liberally in order to allow for the development of a potentially meritorious case.
See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007); Martin
v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (noting that “when confronted with the objection of a
pro se litigant, [the court] must also be mindful of [its] responsibility to construe pro se filings
liberally”). This does not mean, however, that the court can ignore a pro se party’s failure to allege
or prove facts that establish a claim currently cognizable in a federal district court. See Stratton v.
Mecklenburg Cty. Dep’t of Soc. Servs., 521 Fed. App’x 278, 290 (4th Cir. 2013) (quoting Beaudett
v. City of Hampton, 775 F.2d 1274, 1277–78 (4th Cir. 1985) (noting that “‘district judges are not
mind readers,’ and the principle of liberal construction does not require them to ‘conjure up
questions never presented to them or to construct full-blown claims from sentence fragments’”).

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DISCUSSION
Magistrate Judge’s Report & Recommendation
In his Report, the magistrate judge recommends that the court summarily dismiss Plaintiffs’
action without prejudice and without issuance and service of process. (ECF No. 20 at 8). First,
the magistrate judge noted that, to the extent Plaintiffs seek to recover against Defendants for
violations of Vincent’s constitutional rights, Plaintiffs are prohibited from bring an action on his
behalf. Id. at 2; see also Myers v. Loudon Cty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) (noting
that “[t]he right to litigate for oneself . . . does not create a right to litigate for others” (emphasis
removed)).
Next, the magistrate judge considered Plaintiffs’ claim under Bivens. (ECF No. 20 at 3–
4). In order to state claim under Bivens, a plaintiff must show that the defendant, acting under
color of federal law, deprived the plaintiff of a right secured by the Constitution and the laws of
the United States. Id. at 3 (citing Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001)). The
magistrate judge properly found that in Bivens, the United States Supreme Court recognized a
private right of action against federal FBI agents for the alleged violation of a plaintiff’s Fourth
Amendment rights and that, since then, the Court has only recognized Bivens claims in two
additional contexts: “(1) under the Fifth Amendment’s Due Process Clause for gender
discrimination . . . and (2) under the Eighth Amendment’s Cruel and Unusual Punishment Clause
against prison officials for failing to treat an inmate’s asthma.” Id. (internal citations omitted).
Thus, because a Bivens claim is a judicially created remedy, “further extension of Bivens is
disfavored.” Id. at 4 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)). The magistrate judge
correctly noted, therefore, that “prior to examining the merits of the plaintiffs’ claims, the court
must examine whether this case presents a new Bivens context []and if so, the court must conduct

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a ‘special factors’ analysis to determine whether to extend Bivens to said context[].” Id. A claim
will be considered to present a new Bivens context “[i]f the case is different in a meaningful way
from previous Bivens cases decided” by the Supreme Court. Ziglar, 137 S. Ct. at 1859. In such
cases, the court must conduct a special factors inquiry “concentrat[ing] on whether the Judiciary
is well suited, absent congressional action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.” Id. at 1857–58.
In this case, Plaintiffs allege both malicious prosecution under the Fourth Amendment and
cruel and unusual punishment under the Eighth Amendment. See (ECF No. 1). As to the malicious
prosecution claim, the magistrate judge found that it presents a new Bivens context because
“[w]hile Bivens involved Fourth Amendment violations, it involved the arrest and search of a
private apartment by federal agents . . . without a warrant or probable cause . . . .” (ECF No. 20 at
4). Similarly, the magistrate judge concluded that Plaintiffs’ cruel and unusual punishment claim
presents a new Bivens context because, although the Supreme Court has recognized a claim for
cruel and unusual punishment under the Eighth Amendment, it did so based on allegations that a
prison official failed to treat an inmate’s asthma, whereas the allegations at issue in this case assert
that Defendants sought and imposed an impermissibly long sentence of incarceration. Id. at 5–6.
The magistrate judge then conducted the special factors inquiry as to both claims and noted that
while “Congress has been active in the area of prisoners’ rights, . . . its actions do not support the
extension of a new Bivens claim in this matter.” Id. at 5, 6. Accordingly, the magistrate judge
concluded that both Bivens claims are subject to summary dismissal. Id.
Further, the magistrate judge found that, even if Plaintiffs could set forth a proper Bivens
claim, the action would still be subject to summary dismissal because each of the Defendants is
immune from suit. Id. at 6–8. Specifically, the magistrate judge found that Judge Lewis is entitled

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to absolute immunity from suit, Defendants Howard and Nettles are entitled to prosecutorial
immunity, and Defendant Woods is entitled to quasi-judicial immunity. Id. Thus, based on
Plaintiffs’ lack of standing to bring suit on Vincent’s behalf, Defendants’ immunity from suit, and
Plaintiffs’ failure to state a proper claim under Bivens, the magistrate judge recommends the court
summarily dismiss Plaintiffs’ action. Id. at 8.
Plaintiffs’ Objections
Plaintiffs filed two objections to the Report regarding the magistrate judge’s conclusions
as to Plaintiffs’ standing to bring suit and Defendants’ immunity. (ECF No. 25). Plaintiffs’ first
objection clarifies that Plaintiffs are not seeking to bring a cause of action on Vincent’s behalf, but
are raising these claims as individuals and on their own behalf to recover for the injuries they
personally have suffered as a result of Defendants’ alleged actions. Id. The court accepts
Plaintiffs’ assertion that they seek to bring this action only on their own behalf. Nevertheless,
Plaintiffs’ action is still subject to summary dismissal for failure to state Bivens claim. As the
magistrate judge correctly noted, the first element of a Bivens claim is that the defendant(s)
deprived the plaintiff(s) of a constitutional or federal right. (ECF No. 20 at 3). There are no
allegations in the complaint that any of Plaintiffs’ rights have been violated, let alone by the
Defendants or their alleged actions. See (ECF No. 1). Rather, the only rights alleged to have been
violated were Vincent’s Fourth and Eighth Amendment rights. See id. Accordingly, Plaintiffs
cannot establish the first element of a Bivens claim, and the court finds their action is subject to
summary dismissal.
Plaintiffs’ second objection merely states Plaintiffs’ disagreement with the magistrate
judge’s conclusion regarding Defendants’ immunity from suit. Id. However, it is well-settled in
this Circuit that “objections which “merely express disagreement with the magistrate judge’s

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Report . . . in lieu of any actual argument or specific assertion of error in the magistrate judge’s
findings” do not constitute specific objections requiring de novo review by this court. Lowdermilk
v. LaManna, Civ. A. No. 8:07-2944-GRA, 2009 WL 2601470, at *2 (D.S.C. Aug. 21, 2009); see
also Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th Cir. 1982) (noting that de novo review is not
required where a party makes only general and conclusory objections that do not direct the court
to a specific error in the Report). Additionally, Plaintiffs make no objection to the magistrate
judge’s analysis of the Bivens claims and his conclusion that such claims are subject to summary
dismissal. Therefore, those portions of the Report are reviewed only for clear error and the court
need not provide any explanation for adopting the magistrate judge’s recommendations. Camby,
718 F.2d at 199–200; Dunlap, 288 F. Supp. 3d at 662. The court finds no clear error in the
magistrate judge’s analysis of the Bivens claim or of the Defendants’ immunity from suit.
CONCLUSION
Having carefully and thoroughly reviewed the record, the Report, and Plaintiffs’
objections, the court finds no reason to deviate from the Report’s recommended disposition. The
court ADOPTS the Magistrate Judge’s Report, (ECF No. 20), and incorporates it herein.
Accordingly, this action is DISMISSED without prejudice and without issuance and service of
process for the reasons set forth herein and in the Report.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
September 8, 2021
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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