Martin v. D & R Lounge

Filing 18

ORDER adopting Report and Recommendations of Magistrate Judge Wallace W Dixon; denying 15 Motion to Amend/Correct. It is therefore ORDERED that Plaintiffs Complaint is summarily DISMISSED without prejudice and without issuance and service of process. Signed by Honorable Timothy M Cain on 10/17/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Alfred Donnie Martin, Jr.,
Plaintiff,
vs.
D&R Lounge,
Defendant.

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Civil Action No. 8:14-3427-TMC

ORDER

Plaintiff, proceeding pro se and in forma pauperis, filed this civil action against D&R
Lounge. 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 Plaintiff’s Complaint be
dismissed without prejudice and without issuance and service of process for lack of jurisdiction.
(ECF No. 12). Plaintiff was advised of his right to file objections to the Report. (ECF No. 12),
and he filed timely objections. (ECF No. 14). Plaintiff also filed a motion to amend/correct his
Complaint. (ECF No. 15).
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).

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Plaintiff’s objections fail to address any specific, dispositive portion of the Report. The
objections are non-specific, unrelated to the dispositive portions of the Report, or merely restate
Plaintiff’s claims. The court has thoroughly reviewed the Report and Plaintiff’s objections and
finds no reason to deviate from the Report’s recommended disposition.
Plaintiff’s objections instead attempt to amend his complaint to add the City of
Anderson’s Public Works Division. (ECF No. 14). He also filed a motion to amend his
complaint to institute a § 1983 suit against the Public Works Division. (ECF No. 15). The basis
for his claim against the Public Works Division is that, while he was running away from the
scene of the alleged attack, he tripped on an uneven sidewalk. (ECF No. 15).1 This, Plaintiff
claims, violated his 8th Amendment rights. (ECF No. 15).
The 8th Amendment provides: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” Construing this claim in the light most
favorable to the pro se Plaintiff, the basis of the claim is either that the uneven sidewalk itself
constituted cruel and unusual punishment, or that the uneven sidewalk permitted others to inflict
cruel and unusual punishment. See (ECF No. 15). The Cruel and Unusual Punishment Clause
“is not applicable to cases in which the plaintiff[ is] not in custody as a result of having been
convicted of a crime.” Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987); see also
Ingraham v. Wright, 430 U.S. 651, 667-68 (1977) (“In the few cases where the Court has had
occasion to confront claims that impositions outside the criminal process constituted cruel and
unusual punishment, it has had no difficulty finding the Eighth Amendment inapplicable.”).
Although Plaintiff appears to be in custody now (ECF No. 1), he was not in custody when the
sidewalk allegedly inflicted cruel and unusual punishment on him. Moreover, even construing
this as a claim under the Due Process Clause of the Fourteenth Amendment, the court finds that
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His complaint made no reference to any of the “lynching” occurring outside the building. See (ECF No. 1).
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the Plaintiff’s claim is subject to dismissal because there is no evidence of intentional action to
inflict any alleged deprivation on the part of the Public Works Division.

See Daniels v.

Williams, 474 U.S. 327, 333 (1986) (“Where a government official’s act causing injury to life,
liberty, or property is merely negligent, ‘no procedure for compensation is constitutionally
required.” (quoting Parratt v. Taylor, 451 U.S. 527, 548 (1981)) (emphasis in original)).
Accordingly, the court adopts the Magistrate Judge's Report (ECF No. 12) and
incorporates it herein. It is therefore ORDERED that Plaintiff’s Complaint is summarily
DISMISSED without prejudice and without issuance and service of process and Plaintiff’s
motion to amend/correct his Complaint (ECF No. 15) is DENIED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
October 17, 2014
Anderson, South Carolina

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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