Addison v. McFadden

Filing 24

ORDER Adopting 10 Report and Recommendation. It is therefore ORDERED that Plaintiff's 1 complaint is DISMISSED without prejudice and without issuance and service of process for failure to state a claim. Further, Plaintiff's 17 Motion to amend his complaint and 22 Motion for a stay are DENIED. Additionally, the court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 1/30/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

Jerome Addison, #243778,
Plaintiff,
vs.
Joseph McFadden, Warden Lieber
Correctional Institution,
Defendants.

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Civil Action No. 8:13-2943-TMC

ORDER

Plaintiff, a state prisoner proceeding pro se, filed this action pursuant to 42 U.S.C. §
1983. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter
was referred to a magistrate judge for pretrial handling. Before the court is the magistrate
judge’s Report and Recommendation (“Report”), recommending that the complaint be dismissed
without prejudice and without issuance and service of process. Plaintiff was advised of his right
to file objections to the Report. (ECF No. 10 at 6). Plaintiff timely filed objections. (ECF No.
16). Plaintiff has also filed motions to amend the complaint and for a stay while he exhausts his
state remedies. (ECF Nos. 17 and 22).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “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 that

case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
As set forth above, Plaintiff filed timely objections to the Report. (ECF No. 16.)
However, his objections fail to address any specific, dispositive portion of the Report. The court
has thoroughly reviewed the Report and Plaintiff’s objections and finds no reason to deviate
from the Report’s recommended disposition.
Moreover, reviewing Plaintiff’s motion to amend (ECF No. 17) and liberally construing
it, the court finds that granting Plaintiff's motion to amend would be futile. See In re PEC
Solutions, Inc. Sec. Litig., 418 F.3d 379 (4th Cir. 2005) (“Leave to amend need not be given
when amendment would be futile.”).1 In his proposed Amended Complaint, Plaintiff is still
seeking habeas relief (ECF No. 17 at 2), and as set forth in the Report, Plaintiff has previously
brought four habeas actions. Accordingly, even if the court granted Plaintiff’s motion to amend,
as Plaintiff has not received permission from the Fourth Circuit Court of Appeals to file a
successive § 2254 petition, this court is without authority to entertain it. 28 U.S.C. § 2244
(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the

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Fed.R.Civ.P. 15(a)(1) provides, in relevant part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive pleading.” In Galustian v. Peter, 591 F.3d
724, 730 (4th Cir. 2010), a defamation action, the Fourth Circuit Court of Appeals held that a plaintiff's
right to amend his complaint once under Fed.R.Civ.P. 15(a) is absolute, irrespective of whether the
amendment would prove futile. Id. The circuits are split on whether a plaintiff who is proceeding in
forma pauperis (“IFP”) under 28 U.S.C. § 1915 has an absolute right to amend. Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1024 (7th Cir. 2013) (discussing split and cases). The Fourth Circuit has not
addressed this issue in a published opinion. However, recently, in an unpublished per curiam decision,
the Fourth Circuit affirmed a district court’s decision addressing this issue. Rutledge v. Town of
Chatham, C/A No. 10-2310414 F.App’x 568 (2011). In Rutledge, 2010 WL 4791840 (W.D.Va. 2010),
the district court distinguished the holding in Galustian based upon the fact that the plaintiff was
proceeding IFP. The district court noted that § 1915 allows the court to exercise a great deal of control
over the claims of a plaintiff who is proceeding IFP, and the court may at any time pre-screen and dismiss
claims that are frivolous or fail to state a claim. The court finds the analysis and holding set forth in
Rutledge persuasive.
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district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”); United States v. Winestock, 340 F.3d
200, 205 (4th Cir. 2003) (“In the absence of pre-filing authorization, the district court lacks
jurisdiction to consider an application containing abusive or repetitive claims.”) Accordingly,
Plaintiff’s motion to amend is denied. Additionally, Plaintiff's motion to stay (ECF. No. 22) is
also denied because the court lacks jurisdiction over this successive petition. Buffey v. Ballard,
5:12CV58, 2012 WL 2675223, at *6 (N.D.W.Va. July 5, 2012) (citing Spivey v. State Bd. of
Pardons & Paroles, 279 F.3d 1301, 1303–04 (11th Cir. 2002) (affirming district court's denial of
petitioner's motion to stay in connection with second or successive habeas claim for lack of
jurisdiction)).
After a thorough review of the Report and the record in this case, the court finds
Plaintiff’s objections are without merit. Accordingly, the court adopts the Report and
incorporates it herein. It is therefore ORDERED that the Plaintiff’s complaint is DISMISSED
without prejudice and without issuance and service of process for failure to state a claim.
Further, for the reasons set forth above, Plaintiff’s motions to amend his complaint and for a stay
(ECF Nos. 17 and 22) are DENIED.
A certificate of appealability will not issue absent "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable
and that any dispositive procedural rulings by the district court are also debatable or wrong. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).
In the instant matter, the court finds that Petitioner has failed to make "a substantial showing of

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the denial of a constitutional right." Accordingly, the court declines to issue a certificate of
appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
January 30, 2014
Anderson, South Carolina

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