Ameen v. South Carolina Department of Corrections et al

Filing 26

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and DISMISSING Plaintiffs Complaint (ECF No. 1). Signed by Honorable J Michelle Childs on 6/6/2016.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Kojo Soweto Ameen,

)
)
Plaintiff,
)
)
v.
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South Carolina Department of Corrections; )
Warden Bush; Warden Deen;
)
Warden Nolan,
)
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Defendants.
)
____________________________________)

Civil Action No. 9:14-cv-04406-JMC

ORDER

Plaintiff Kojo Soweto Ameen (“Plaintiff”), proceeding pro se and in forma pauperis,
brings this action seeking relief pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This matter is before
the court for review of the Magistrate Judge’s Report and Recommendation (“Report”) (ECF No.
22), filed May 27, 2015, recommending that Plaintiff’s Complaint (ECF No. 1) be dismissed
without prejudice and without issuance and service of process. For the reasons below, the court
ADOPTS the Magistrate Judge’s Report (ECF No. 22) and DISMISSES Plaintiff’s Complaint
(ECF No. 1).
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2014, Plaintiff filed an action against the South Carolina Department
of Corrections, Warden Bush, Warden Deen, and Warden Nolan (“Defendants”) alleging that
second hand smoke attributed to him testing positive for tetrahydrocannabinol (“THC”), which
reduced the likelihood of being granted parole. (ECF No. 22.) Plaintiff requested that the court
order South Carolina Department of Corrections (“SCDC”) to acknowledge that Lee
Correctional Institution is a smoke free environment thereby making a positive result from
second hand smoke impossible. (Id. at 2-3.)

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II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The court reviews de novo only those portions of a magistrate judge’s report and
recommendation to which specific objections are filed, and reviews those portions which are not
objected to – including those portions to which only “general and conclusory” objections have
been made – for clear error. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687
F2.d 44, 47 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter with instructions. See 28 U.S.C.
§ 636(b)(1).
III. ANALYSIS
The Magistrate Judge determined Plaintiff’s Complaint (ECF No. 1) did not sufficiently
provide a basis for claims against each defendant.1 (ECF No. 22 at 3 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).) Moreover, Plaintiff’s assertion that SCDC does not follow
administrative policies is not alone actionable under § 1983. (Id. at 7 (citing Keeler v. Pea, 782
F. Supp. 42, 44 (D.S.C. 1992)).) An order to SCDC amounts to a writ of mandamus, which the
Magistrate Judge noted is “a drastic remedy which is infrequently used by federal courts, and its
use is usually limited to cases where a federal court is acting in aid of its own jurisdiction.” (Id.
(citing 28 U.S.C. § 1361; Gurley v. Superior Ct. of Mecklenburg Cty., 411 F.2d 586, 587-88 (4th

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The Magistrate Judge identified the conflicting logic in Plaintiff’s argument stating, “[t]his
would seem to be contrary to Plaintiff’s apparent assertion that, if he is testing positive for THC,
it is because he is breathing second hand smoke.” (ECF No. 22 at 3.)

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Cir. 1969)).) Additionally, “federal courts have no general power to compel action by state
officials.” (Id. at 8 (quoting Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988)).) Finally, Plaintiff
has no constitutionally protected interest of early release on parole. (Id. (citing Greenholtz v.
Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979)).)
Plaintiff filed objections (“Objection”) to the Magistrate Judge’s Report and
Recommendation on July 15, 2015 (ECF No. 24.) Plaintiff’s Objection (id.) states verbatim:
Plaintiff object to SCDC Drug policy # 903 and GA-03.02 in that it
discriminate against none smokers. (1) SCDC does nothing to protect
nonsmokers; (2) Plaintiff are being punished for breathing second hand
smoke; (3) Plaintiff also stated that smoke come through the air ventilation;
(4) Plaintiff state that the warden name is conected to all SCDC policy
concerning rules violation; (5) Plaintiff seek protection from the court, his
last option.
The court is not obligated to provide de novo review because Plaintiff fails to provide
specific objections to the Report. (ECF No. 24 (Fed R. Civ. P. 72(b)(3) (requiring a district judge
to determine de novo any part of the magistrate judge’s disposition that has been properly
objected to)).) Therefore, the court must “only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting an advisory committee note in Fed. R. Civ. P.
72). Upon review of the record, no clear errors were found.
IV. CONCLUSION
After a thorough review of the Report, the court ADOPTS the findings of the Magistrate
Judge’s Report (ECF No. 22) and DISMISSES Plaintiff’s Complaint (ECF No. 1).
IT IS SO ORDERED.

United States District Judge
June 6, 2016
Columbia, South Carolina

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