Bell v. Gambrell Wrecker Service
Filing
15
ORDER RULING ON REPORT AND RECOMMENDATION 11 . The Plaintiff's complaint is dismissed without prejudice and without service on Defendant's Signed by Honorable G Ross Anderson, Jr on 7/7/2015. (kric, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Shaun David Bell,
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Plaintiff,
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vs.
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Gambrell Wrecker Service,
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)
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Defendant.
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_______________________________ )
C/A No.: 8:15-cv-00343-GRA
ORDER
(Written Opinion)
This matter comes before the Court for review of United States Magistrate
Judge Kevin F. McDonald’s Report and Recommendation made in accordance with
28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) DSC, and filed on
January 30, 2015. ECF No. 11. For the reasons discussed herein, this Court adopts
the magistrate judge’s recommendation in its entirety.
Background
Plaintiff Shaun David Bell, proceeding pro se and in forma pauperis, filed this
action pursuant to 42 U.S.C. § 1983. ECF Nos. 1 & 10. Under established procedure
in this judicial district, Magistrate Judge McDonald made a careful review of the pro
se complaint and now recommends that this Court dismiss Plaintiff’s case against
Defendants without prejudice and without issuance and service of process. ECF No.
11. Plaintiff timely filed objections to the magistrate judge’s Report and
Recommendation on February 9, 2015. ECF No. 13.
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Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. See Estelle v. Gamble, 429 U.S. 97 (1976). 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 court
may not construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d
411, 417-18 (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. 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)(i-iii).
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
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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." 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 order for objections to be considered by a United States District Judge, the
objections must be timely filed and 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 general
and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendation.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Furthermore, 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 (4th Cir. 1983). In this
case, February 17, 2015 was the deadline for filing objections. ECF No. 11. Plaintiff
filed timely objections to the Report and Recommendation on February 9, 2015. ECF
No. 13.
Discussion
Upon review of Plaintiff’s objections, this Court will address the objection
because it finds it to be specific and pertinent to the Report and Recommendation.
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Plaintiff objects to the magistrate’s recommendation that the action should be
subject to summary dismissal for the Plaintiff’s failure to plead facts indicating action
under color of state law. To state a claim under § 1983, action taken under color of
state law is required because “most rights secured by the Constitution are protected
only against infringement by governments.” Guidetti v. Cnty of Greenville, Civil Action
No. 6:11-1249-HMH-JDA, 2011 WL 6024287 at *8 (D.S.C. Sept. 12, 2011), citing
Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156 (1978); Holly v. Scott, 434 F.3d 287,
291, 292 (4th Cir. 2006) (“Statutory and common law, rather than the Constitution,
traditionally govern relationships between private parties.”)). To act under color of
state law for purposes of § 1983, a private individual’s action that allegedly causes a
deprivation of a federal right must be “fairly attributable to the state.” American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) quoting Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937 (1982). “[P]rivate activity will generally not be deemed ‘state
action’ unless the state has so dominated such activity as to convert it to state
action.” Debauche v. Trani, 191 F.3d at 507 (quoting Blum v. Yaretsky, 457 U.S. 991,
1004 (1982)). To become state action, private action must have a “sufficiently close
nexus” with the state that the private action “may be fairly treated as that of the State
itself.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. at 50 (quoting Blum v.
Yaretsky, 457 U.S. at 1004). Plaintiff’s complaint merely states that “[t]he officer
notified Gambrell Wrecker Service to come and impound my vehicle in which they did
and all of my personal belongings.” ECF No. 1 at 3. He fails to allege sufficient facts
to indicate that a claim for state action exists. Additionally, though Plaintiff objects
that “Gambrell Towing Company was not acting independently upon my sole request
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of their service. In fact, they was acting under color of state law at the request of the
Honea Path Police Dept. under directive through the Anderson County Sheriff’s
Office,” ECF No. 13, this statement alone is not enough to establish a “sufficiently
close nexus” between the alleged actions of the state actor and the non-state actor
that would convert the private action into action by the “State itself.” See Guidetti v.
Cnty of Greenville, Civil Action No. 6:11-1249-HMH-JDA, 2011 WL 6024287 at *8
(D.S.C. Sept. 12, 2011). Neither the Plaintiff’s Complaint nor his Objection to the
Magistrate’s Report and Recommendation sufficiently allege state action for § 1983
purposes by the non-state actors.
Accordingly, the Court finds that the Plaintiff’s objection is without merit. The
objection is overruled.
Conclusion
After a thorough 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 DISMISSED
without prejudice and without service on Defendants.
IT IS SO ORDERED.
________________________________
G. Ross Anderson, Jr.
Senior United States District Judge
July 7 , 2015
Anderson, South Carolina
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NOTICE OF RIGHT TO APPEAL
Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure,
Plaintiff has the right to appeal this Order within thirty (30) days from the date of its
entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of
Appellate Procedure, will waive the right to appeal.
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