Hobson v. Alexander et al

Filing 46

ORDER adopting Report and Recommendations re 29 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on 07/06/2017.(adeh, ) (Main Document 46 replaced on 7/6/2017) (egra, ). Modified on 7/6/2017 As requested by Chambers (egra, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Shawn Avery Hobson,
Plaintiff,
v.
Gregory Alexander, et al.,
Defendants.

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C.A. No.: 9:17-cv-698-PMD-MGB
ORDER

This matter is before the Court on United States Magistrate Judge Mary Gordon Baker’s
Report and Recommendation (“R & R”) (ECF No. 29.) In her R & R, the Magistrate Judge
recommends dismissing pro se Plaintiff Shawn Avery Hobson’s claims against Defendants Jerry
Cook, Colin Moore, Jordan Jinks, Peggy O’Banner, Danial Anderson, and the Yemassee Police
Department. Hobson has filed a response to the R & R that he titled “Legal Mail and Omission
of Facts” (ECF No. 33), which the Court has construed as objections. For the following reasons,
the Court overrules Hobson’s objections and adopts the Magistrate Judge’s recommendation.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This
Court must conduct a de novo review of any portion of the R & R to which a specific objection is
made, and it may accept, reject, or modify the Magistrate Judge’s findings and recommendations
in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the
matter to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the
party’s agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140
(1985). Absent a timely, specific objection—or as to those portions of the R & R to which no

specific objection is made—this 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 &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
DISCUSSION
This case concerns Hobson’s 2015 arrest outside the Cozy Corner Café in Yemassee,
South Carolina. Hobson claims that police chief Gregory Alexander and officer James Roggers
used excessive force in the arrest and that his resulting injuries were met with deliberate
indifference. He is suing the Yemassee Police Department, Alexander, and Roggers for causing
his injuries. Hobson is also suing Cook, who is the town’s mayor, and town council members
Moore, Jinks, O’Banner, and Anderson for their roles in hiring and overseeing Alexander and
Roggers. Finally, he faults councilman Moore, who witnessed the arrest, for not helping him.
The Magistrate Judge recommends dismissing the Yemassee Police Department because
it is not a “person” who can be sued under 42 U.S.C. § 1983. She recommends dismissing the
mayor and council members because they have legislative immunity and because vicarious
liability is outside the scope of § 1983. Finally, the Magistrate Judge recommends dismissing
Moore for the additional reason that his alleged failure to intervene in Hobson’s arrest does not
constitute the state action needed to trigger § 1983 liability.
Hobson does not disagree with any of that analysis. Rather, he says he “guess[es]” he
understands it. (Objs., ECF No. 33, at 6.) As there is no objection to the Magistrate Judge’s
dismissal recommendations, the Court has reviewed them for clear error and, seeing none, agrees
with them.

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Hobson spends most of his response to the R & R reciting some of his allegations and
outlining an additional claim he wishes to assert against Alexander. 1 The Court does not view
that as an objection to the R & R.
Hobson’s first true objection relates to the filing of his amended complaint. The R & R
suggests Hobson might not have timely filed that pleading; Hobson insists he did. This objection
is overruled as moot. The Magistrate Judge granted his motion to amend his complaint.
Hobson’s only other objection relates to the Magistrate Judge’s description of Hobson’s
arrest. The arrest incident began with Hobson sitting in his car outside the café. In the R & R,
the Magistrate Judge wrote that Jamie Crowley also was sitting in the car, speaking with Hobson.
Hobson complains that statement is inaccurate, as Crowley was standing outside the car.
Hobson’s amended complaint does not specify where Crowley was located, and the Court does
not see at this time why that detail is of any consequence. The Magistrate Judge therefore did
not err in her recitation of Hobson’s factual allegations. The objection is overruled.
CONCLUSION
For the foregoing reasons, it is ORDERED that Hobson’s objections are
OVERRULLED and that the Magistrate Judge’s recommendations are ADOPTED.
Accordingly, Hobson’s claims against Jerry Cook, Colin Moore, Jordan Jinks, Peggy O’Banner,
Daniel Anderson, and the Yemassee Police Department are DISMISSED without prejudice and
without issuance and service of process. If Hobson wishes to file an amended pleading asserting
claims against any of those defendants, he must do so no later than July 21, 2017.
AND IT IS SO ORDERED.

July 6, 2017
Charleston, South Carolina
1.
That claim is the subject of a motion to supplement currently pending before the Magistrate Judge. Hobson
filed the motion after the Magistrate Judge issued her R & R.

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