Weber v. Jones et al

Filing 17

ORDER ADOPTING 12 Report and Recommendation. IT IS THEREFORE ORDERED that the case is DISMISSED without prejudice. Signed by Honorable G Ross Anderson, Jr on 7/2/13. (kmca)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/ GREENWOOD DIVISION
Mauricio E. Weber,

)
)
Plaintiff,
)
)
v.
)
)
Arlette Jones; Bobby Ham; Garry L.
)
Bryant; Darren Collins; and Dorothy
)
Hankins; sued in their official capacities, )
)
Defendants.
)
______________________________________ )

C/A No.: 8:13-cv-01040-GRA
ORDER
(Written Opinion)

Plaintiff Mauricio E. Weber (“Plaintiff”) brings this action pursuant to 42
U.S.C. § 1983. ECF No. 1. Plaintiff alleges that he is a pretrial detainee at the
Anderson County Detention Center, and he is proceeding pro se and in forma
pauperis under 28 U.S.C. § 1915.

In the Complaint, Plaintiff contends that

Defendants conspired to deny him access to the courts by submitting false
affidavits to this Court.

Plaintiff requests that he be given the contact

information of two South Carolina Department of Corrections inmates, that the
Court order arrest warrants for Defendants, that judgment be entered against
Defendants in a previously-filed lawsuit, and that Defendants be ordered to pay
the costs of litigation in this case and in the previously-filed action.

In

accordance with established local procedure in this judicial district, this case was
referred to United States Magistrate Judge Jacquelyn D. Austin for all pretrial
proceedings. Magistrate Judge Austin recommends that Plaintiff’s Complaint be

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dismissed without prejudice. Report and Recommendation 5, ECF No. 12. After
reviewing the record, the relevant law, and the Report and Recommendation (the
“Report”), the Court agrees with and adopts the Report in its entirety.
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).

A 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 filed his Complaint pursuant to 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. To protect against possible
abuses of this privilege, the statute requires a district court to dismiss the case
upon a finding that the action “fails to state a claim on which relief may be
granted,” “is frivolous or malicious,” or “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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Discussion
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 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 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." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate with
instructions." Id. In the absence of specific objections to the Report, this Court
is not required to give any explanation for adopting the recommendation. Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

Furthermore, “[t]he timely filing

of specific objections to the magistrate judge’s recommendation is necessary to
preserve appellate review of the substance of that recommendation when the
parties have been warned of the consequences of noncompliance.” Cooper v.
Dep’t Veterans Affairs, 349 F. App’x 850 (4th Cir. 2009) (unpublished) (citing
Wright v. Collins, 766 F.2d 841, 845–46 (4th Cir. 1985)).
Plaintiff filed untimely objections to the Report; however, he does not
object to any specific portion of the Report, nor does he claim that the
magistrate made a legal or factual error.1 Rather, he restates his allegation that

1

A pro se prisoner’s motion is deemed filed when it is delivered to the prison mailroom to be
forwarded to the district court. Houston v. Lack, 487 U.S. 266, 276 (1988). Plaintiff’s
objections to the Report were due by May 20, 2013, and the objections were not docketed until

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Defendants submitted false affidavits. As correctly set forth by the Magistrate
Judge in the Report, “a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973).

Therefore, Plaintiff has failed to state a claim upon which

relief may be granted and the case should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
Furthermore, Plaintiff raised his concerns about the December 19, 2012
affidavits

in

his

objection

to

Magistrate

Judge

Austin’s

Report

and

Recommendation in Weber v. Jones et al., C/A No.: 8:12-cv-02922-GRA-JDA
(D.S.C.) (“Weber I”).2 In that case, which is currently pending before this Court,
Plaintiff alleges that Defendants have violated his constitutional rights in various
ways.

On December 19, 2012, Defendants moved to dismiss Weber I for

improper service of process, and in the alternative, requested an extension of
time to file their answer to Plaintiff’s Complaint.

ECF No. 17 (Weber I).

In

support of their request, Defendants submitted affidavits attesting that the
officer whom attempted to accept service on behalf of Defendants was not
authorized to do so. ECF Nos. 17-2, 17-3, 17-4, 17-5, & 17-6 (Weber I). On
January 3, 2013, the Magistrate Judge issued a Report and Recommendation

May 24, 2013. The envelope does not bear a visible prison mailroom stamp and the postmark
date is not discernible. More significantly, Plaintiff dated his objection May 22, 2013; thus, it is
untimely.
2
This Court may take judicial notice of “its own files and records.” Aloe Creme Labs, Inc. v.
Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (per curiam); see also Colonial Penn. Ins. Co.
v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotation marks and brackets omitted)
(“We note that the most frequent use of judicial notice . . . is in noticing the content of court
records.’”). 

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and recommended that this Court grant Defendants’ Motion to Enlarge Time and
deny Defendants’ Motion to Dismiss. ECF No. 20 (Weber I). Plaintiff filed an
Objection to the Report and Recommendation and raised his concerns that the
Defendants had lied in their affidavits:
Plaintiff objects to the Report and Recommendation because as the
declaration demonstrates Defendants submitted affidavits in bad faith
in order to get Plaintiff’s case dismissed/ enlargement of time. . . .
[T]he Defendants purposely delayed retaining counsel and filing a
response to the Complaint. . . . It was the December 2012
conversation that Plaintiff had with a detainee while in the shower
room that prompted the Defendants to submit fraudulent affidavits
alleging “improper service . . . . ”
Pl.’s Objection to Report and Recommendation 5–6, ECF No. 29 (Weber I). After
considering Plaintiff’s objections, this Court granted Defendants’ Motion to
Enlarge Time and denied Defendants’ Motion to Dismiss. ECF No. 35 (Weber I).
Plaintiff brought up the matter again in a Motion to Compel, and the Magistrate
Judge denied Plaintiff’s Motion. Pl.’s Mem. Supp. Mot. to Compel 2–3, ECF No.
44-2; ECF No. 52 (Weber I). Plaintiff has also raised the issue in his Response in
Opposition to Defendants’ Motion for Summary Judgment and in declarations
that he filed in support thereof. Pl.’s Resp. in Opp’n to Defs.’ Mot. Summ. J.
39–43, ECF No. 54; Decls., ECF Nos. 54-1, 54-2, 54-3, 54-4, & 54-5 (Weber I).
The Court agrees with the Magistrate Judge that Weber I is the proper action in
which Plaintiff’s concerns about the affidavits should be raised and that the
Court “has no duty to grind the same corn a second time. Once was sufficient.”

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Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)
(per curiam).
Finally, in his Objection, Plaintiff requests that he be granted leave to
amend his Complaint in order to “supplement and incorporate the claims state[d]
herein with Weber I.” Pl.’s Objection to Report & Recommendation 2, ECF No.
14. Under Federal Rule of Civil Procedure Rule 15(a)(2), a “court should freely
give leave” to amend a pleading “when justice so requires.” “’[L]eave to amend a
pleading should be denied only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the moving party, or the
amendment would be futile.’” Edwards v. City of Goldsboro, 178 F.3d 231, 242
(4th Cir. 1999) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509)
(4th Cir. 1986)). A motion to amend may be denied on the ground of futility
when the amendment is “clearly insufficient or frivolous on its face.” Johnson,
785 F.2d at 510; see Jones v. Lexington Cnty. Det. Ctr., 586 F. Supp. 2d 444,
450 (D.S.C. 2008) (“While this court allows plaintiffs, particularly pro se
plaintiffs, to freely amend their pleadings so that substantive justice is not
sacrificed on the altar of hollow procedure, it would be pointless and wasteful to
do so where a plaintiff has not alleged any facts which would give rise to a claim
under the law.”).

In this case, it would be futile to allow Plaintiff to amend his

Complaint, because, as stated above, “a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.” Linda R.S.

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v. Richard D., 410 U.S. 614, 619 (1973). Therefore, Plaintiff’s motion to amend
the Complaint is DENIED.
Conclusion
After a review of the record, this Court finds that the magistrate
accurately summarizes this case and the applicable law. Accordingly, the Report
is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that the case is DISMISSED without
prejudice.
IT IS SO ORDERED.

July 2, 2013
Anderson, South Carolina

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