Opinion
C. A. 4:22-1576-JD-KDW
08-29-2023
Darrell De'Marcus Land, Plaintiff, v. Detective Kenneth Marcus, Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Darrell De'Marcus Land (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983 on May 18, 2022, against Solicitor Mary Ellen Walter and Detective Kenneth Marcus alleging a violation of his civil rights. ECF No. 1. On June 8, 2022, Plaintiff filed an Amended Complaint. ECF No. 18. On March 31, 2023, Defendant Marcus filed a Motion for Summary Judgment. ECF No. 57. Defendant Walter was dismissed without prejudice and without issuance and service of process by way of court order on April 11, 2023. ECF No. 61. Because Plaintiff is proceeding pro se, after Defendant Marcus filed his Motion for Summary Judgment, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of such motions and of the need for him to file an adequate response. ECF No. 58. After having not received a response, the court issued an order advising Plaintiff to file a response to this Motion. ECF No. 66. Thereafter, Plaintiff filed a document, styled as a letter, on June 28, 2023. ECF No. 76. The undersigned construes this filing as Plaintiff's Response, and Plaintiff has not otherwise filed any additional response to Defendant's Motion. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge grant Defendant's Motion for Summary Judgment, ECF No. 57.
I. Factual and Procedural Background
The facts and allegations as set forth in this Report and Recommendation are derived from both Plaintiff's Amended Complaint and his Response, as well as the affidavits and exhibits provided by Defendant, along with his Motion for Summary Judgment. The facts have been construed in a light most favorable to Plaintiff. Defendant Marcus provided his own affidavit as an attachment to his Motion for Summary Judgment. This affidavit provides an explanation of the timeline leading up to the events which comprise the allegations contained in Plaintiff's Amended Complaint. Defendant Marcus, a detective with the Horry County Police Department, provides that on or about August 14, 2019, the Horry County Police Department (the “HCPD”) began investigating the disappearance of an individual named Arnold Jamal Bennett after having been transferred the investigation by the Myrtle Beach Police Department. See Affidavit of Kenneth Marcus, ECF No 57-1, attached as Exhibit A to Def.'s Brief. On October 2, 2019, the HCPD learned that the remains of an individual who suffered a gunshot wound to the head and who matched the general description of Mr. Bennett had been found. Marcus Aff. ¶ 4. The HCPD had previously spoken with Plaintiff twice concerning Mr. Bennett's disappearance. Marcus Aff. ¶ 6; see also ECF No. 18 at 5. During the investigation, the HCPD learned that, while Plaintiff was one of the last people to have seen Mr. Bennett alive, Plaintiff apparently lied to investigators about several things, including his whereabouts on the day Mr. Bennett went missing, his contact with Mr. Bennett, and other inconsistencies in his provided alibi. Marcus Aff. ¶ 6. Upon obtaining a variety of evidence and information, Defendant Marcus determined there was probable cause to arrest Plaintiff. Marcus Aff. ¶¶ 8; 10. After appearing before a judge and obtaining an arrest warrant, Defendant Marcus gave the warrant to the HCPD, and they, along with the United States Marshals Service (“USMS”), participated in Plaintiff's arrest. Marcus Aff. ¶¶ 10-12. The USMS took Plaintiff into custody. Marcus Aff. ¶ 14. Defendant Marcus, who was present at the location of the arrest, spoke to Plaintiff once he exited his place of employment. Marcus Aff. ¶¶ 15-17. This interaction is included with the audio files provided by Defendant Marcus. Exhibit D to Def.'s Br. at ECF No. 57-4.
Defendant Marcus avers that detectives received Plaintiff's consent to search his vehicle and spoke to him while he was in the custody of the USMS. Marcus Aff. ¶¶ 17-20. Defendant Marcus further states that he interviewed Plaintiff prior to him being transported to J. Reuben Long Detention Center. Marcus Aff. ¶¶ 23-24. Defendant Marcus obtained two arrest warrants against Plaintiff for weapons possessions charges related to the murder charge brought against him for the murder of Mr. Bennett. Marcus Aff. ¶ 26. Plaintiff was convicted of murder and a related weapons charge on July 28, 2022. Marcus Aff. ¶ 29.Defendant Marcus attached several Horry County Police Department Reports of Investigation, which were signed by him, along with Plaintiff's arrest warrant, to the Motion for Summary Judgment. See Exhibit A to Def.'s Br. at ECF No. 571. Defendant also attached the affidavit from two officers, Daniel Spencer and Brian Wilson, who were also involved in Plaintiff's arrest. See Affidavit of Daniel Spencer, attached as Exhibit B to Def.'s Motion at ECF No. 57-2; see also Affidavit of Brian Wilson, attached as Exhibit C to Def.'s Motion at ECF No. 57-3. Defendant Marcus also provided the purported written confession of Plaintiff, attached to Defendant's Affidavit as ECF No. 57-1, pp. 40-41, as well as several audio and video files of Plaintiff's interviews with law enforcement. Exhibit D to Def.'s Motion, ECF No. 57-4.
Plaintiff was convicted subsequent to the filing of his Amended Complaint.
The audio file includes Defendant Marcus's conversation with Plaintiff once Plaintiff was taken into custody. Plaintiff's initial complaint upon speaking with Defendant Marcus was that he was upset he was arrested at his place of employment. See Exhibit D to Def's. Br., audio file of arrest at U.S. Foods at:50-:55. Defendant Marcus is heard explaining to Plaintiff why he was arrested at his place of employment and agreeing to call Plaintiff's wife to let her know of the arrest. See Exhibit D. Plaintiff further explains why he was upset that they arrested him at work. See Exhibit D to Def's. Br., audio file of arrest at U.S. Foods at 2:10-3:00. During this recorded conversation, Plaintiff does not allege or make any statements suggesting he was harmed or treated abusively in any way, and the conversation provided in the recorded is, by all accounts, a civil conversation on the part of both Plaintiff and Defendant Marcus.
Plaintiff's Amended Complaint and subsequent Response include allegations beginning on the day of his arrest at U.S. Foods. According to Plaintiff, he alleges that on or about October 28, 2019, Defendant Marcus, as well as other detectives and U.S. Marshals, came to his place of employment at U.S. Foods and arrested him. ECF No. 18 at 5. Plaintiff alleges that prior to his arrest, he fully cooperated during his meetings with detectives at the HCPD before Defendant Marcus, other detectives, and the U.S. Marshals came to his job to arrest him. ECF No. 18 at 5. Plaintiff claims he was arrested abusively, even after checking in with them regularly at their requests. Id.
Plaintiff alleges he stepped outside of his orientation class, was held at gunpoint, and threatened to be shot if he tried anything. Id. at 6-7. Plaintiff alleges he could not move “due to being subdued by a slew of officers holding [him] at gun point screaming, ‘he's bucking, blow his brains out.'” Id. at 7. Plaintiff claims internal affairs investigated and found his claims were without merit because they did not see any of what Plaintiff alleged on the cars or body cameras. Id. Plaintiff alleges he was never in a Horry County car and was taken to Horry County in a U.S. Marshal's truck that he does not believe had cameras or recording devices. Id. Plaintiff alleges that before he entered the detention center, Defendant Marcus threatened to kill Plaintiff's family if he [Plaintiff] did not say he killed the victim. Id. Plaintiff says his shoulder was dislocated due to the rough handling, and his request for medical attention was denied by the officers at booking. Id. at 7.
Plaintiff contends there is no proof there is a co-defendant to his alleged charges. Id. Plaintiff alleges his name and alleged charges are on the J. Reuben Long Detention Center's site, the newspaper, and social media, where it has been shared numerous times; however, there is nothing on Steven A. Morgan. Id. Plaintiff says Defendant Marcus offered Mr. Morgan immunity if he gave him any information about the initial investigation, but Morgan said he did not know anything. Id. Plaintiff also alleges Defendant Marcus is aware that Mr. Morgan confessed to the crime, and Plaintiff has proof that Mr. Morgan committed the crime, but Defendant has disregarded this information. Id.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
1. Claim One: Fourth Amendment Violation pursuant to 42 U.S.C. § 1983
Plaintiff appears to allege Defendant Marcus violated his constitutional rights afforded to him under the Fourth Amendment by falsely arresting him and/or engaging in the malicious prosecution of Plaintiff. This claim is derived from the fact that Plaintiff alleges someone else confessed to the crime, and that Defendant Marcus coerced this individual into recanting his statement. ECF No. 18 at 6-7. In short, Plaintiff alleges that he did not commit this crime, but that Defendant Marcus sought to ensure that he, rather than another individual, was held responsible for the murder. Defendant Marcus argues that Plaintiff's allegations are not only barred by Heck v. Humphrey, but his claim must also fail because Plaintiff has not established the elements of this claim. In response, Plaintiff again alleges that Ms. Walters, who is no longer a Defendant in this lawsuit, failed to conduct a thorough investigation into the murder and that another individual confessed to the murder. ECF No. 76 at 1-2. With respect to Defendant Marcus, Plaintiff alleges that in response to Defendant Marcus's contention that he should have presented this evidence to the Supreme Court, Plaintiff asserts that there is an alleged written confession that another individual wrote, and he is being unlawfully imprisoned. ECF No. 76 at 3. Plaintiff further states in his letter that Defendant Marcus worked to threaten other individuals with criminal charges or ignored evidence that should have cleared Plaintiff. ECF No. 76 at 4. Plaintiff alleges that Defendant Marcus ordered Plaintiff to be kept separate from the individual that Plaintiff alleges confessed to the crime, and Defendant Marcus had Plaintiff's cell searched and his personal effects stolen. ECF No. 76 at 6. Finally, Plaintiff states that Defendant Marcus should be reprimanded and a “verdict should be in my favor.” Id. at 7.
First, the undersigned agrees with Defendant Marcus that Plaintiff's claims that he was wrongfully arrested or imprisoned, or that Defendant Marcus failed to prosecute the correct individual, are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that in order to recover damages pursuant to § 1983, Plaintiff must first prove that a conviction or sentence has been reversed on direct appeal, expunged by an executive order, declared invalid by a state tribunal, or called into question by a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The petitioner in Heck, a prisoner convicted of voluntary manslaughter, brought a claim pursuant to § 1983, asserting that officers engaged in an arbitrary investigation and destroyed exculpatory evidence leading to his arrest, thereby calling into question the validity of his conviction. Defendant Marcus argues that Plaintiff was convicted on the murder charge forming the basis of his allegations, a conviction which Plaintiff has not shown has been reversed or otherwise overturned in any way. Def.'s Br. at 11. Indeed, subsequent to the filing of this action by Plaintiff, he was convicted of murder. Accordingly, Defendant Marcus argues that, pursuant to Heck, any claim stemming from his allegations that he was falsely accused of the crime of murder should be dismissed. Defendant Marcus further argues that as a matter of law, Plaintiff has failed to establish the necessary elements for malicious prosecution.
Prior to analyzing the elements for a claim for malicious prosecution, it is first necessary to determine whether the claims have been properly brought under 42 U.S.C. § 1983. A malicious prosecution claim under § 1983 is “properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)). To establish this claim, a plaintiff must show that the defendant caused a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and that the criminal proceedings terminated in the plaintiff's favor. Id. Here, not only has Plaintiff failed to allege these elements, but Plaintiff is unable to show that the criminal proceedings terminated in his favor because he was convicted of murder in state court. See Marcus Aff., ¶ 29. Moreover, as pointed out by Defendant Marcus, a Horry County Magistrate Judge found probable cause existed when Defendant Marcus presented his case after investigating Plaintiff's involvement with the underlying crime. See Marcus Aff., ¶ 10; see also Exhibit 2 to Marcus Affidavit at ECF No. 57-1, p. 39. Defendant Marcus also produced evidence in the form of his detailed investigative reports and Plaintiff's written confession to support his reasons for seeking the arrest of Plaintiff. Thus, based on this evidence in the record, the undersigned recommends finding that Plaintiff's claim fails as a matter of law. Alternatively, the undersigned agrees that this claim is barred by Heck v. Humphrey for the reasons explained above, namely that his underlying conviction has not been overturned or reversed in any way. Accordingly, the undersigned recommends granting summary judgment in favor of Defendant Marcus on this claim.
2. Claim Two: Fourth Amendment Excessive Force Claim pursuant to 42 U.S.C. § 1983
Within Plaintiff's Amended Complaint, Plaintiff alleges that Defendant Marcus, other detectives, and U.S. Marshals came to his place of employment, and “abusively arrested” him. ECF No. 18 at 5. Plaintiff further alleges he was held at gunpoint and threatened to be shot. ECF No. 18 at 5-6. Finally, Plaintiff alleges that due to the aggressive handling of his arrest, his shoulder was dislocated. ECF No. 18 at 7. It appears from these allegations that Plaintiff seeks to allege an excessive force claim against Defendant Marcus.
Liability under § 1983 involves a showing that “the official charged acted personally in the deprivation of the plaintiff's rights.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Defendant Marcus argues Plaintiff's claim fails as a matter of law because he was not personally involved in taking Plaintiff into custody. Def.'s Br. at 14; ECF No. 57. Specifically, Defendant Marcus argues that evidence shows that he was not in the building at the time the USMS took Plaintiff into custody, and Defendant Marcus's contact with Plaintiff on the day of Plaintiff's arrest occurred after Plaintiff was taken into custody. Def.'s Br. at 15. This evidence includes audio and video interactions, Defendant Marcus's affidavit, and the affidavit of two other officers (Detective Daniel Spencer and Detective Wilson) who both averred that Defendant Marcus had no physical interaction with Plaintiff or any role in his transport to the detention center. Specifically, Detective Spencer states that the USMS instructed Defendant Marcus to remain outside of Plaintiff's employment during the apprehension of Plaintiff. Affidavit of Daniel Spencer, Exhibit B to Def.'s Brief at ECF No. 57-2, ¶ 6. Detective Spencer avers further that once Plaintiff was taken outside, Defendant Marcus spoke with him regarding the reason for his arrest and the search of his vehicle. Spencer Aff., ¶ 7. As discussed previously, this conversation was included as a recorded audio file with the Motion for Summary Judgment. Finally Detective Spencer avers that only USMS personnel were involved in Plaintiff's apprehension into custody, and that Plaintiff's only contact with Defendant Marcus occurred after his arrest. Spencer Aff., ¶ 10. Similarly, Detective Brian Wilson, the detective who rode to the arrest location with Defendant Marcus, stated that Defendant Marcus was not involved in arresting Plaintiff or otherwise having any type of physical interaction with Plaintiff other than escorting Plaintiff out of an interview room once he was brought to the Lexington County Sheriff's Office. See Affidavit of Brian Wilson, Exhibit C to Def.'s Brief at ECF No. 57-3, ¶¶ 6; 11. In reviewing the evidence provided to the court, the undersigned agrees with Defendant Marcus that any claim by Plaintiff that Defendant Marcus engaged in excessive force during Plaintiff's arrest is not supported by the record. Plaintiff provides no response to this argument, and even viewing the facts in a light most favorable to Plaintiff, there exists no genuine issue of material fact as to whether this is a supportable claim against Defendant Marcus. Accordingly, the undersigned recommends granting summary judgment in favor of Defendant Marcus on this claim.
3. Defamation Claims
Within Plaintiff's Amended Complaint, he generally alleges “defamation of character and slander.” ECF No. 18 at 4. Plaintiff also alleges that his charges were “in newspapers and all over social media.” Id. at 6. Finally, Plaintiff seeks damages for both defamation of character and slander. Id. at 7. Defendant Marcus argues that these claims are barred or otherwise fail as a matter of law. Plaintiff does not respond to the arguments advanced by Defendant Marcus.
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of a defendant's communications to others of a false message about a plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 508, 332 S.C. 502 (S.C. 1998). Under South Carolina law, the essential elements of a claim for defamation are: 1) a false and defamatory statement; 2) unprivileged publication to a third party by defendant; 3) fault on the part of the defendant publisher; and 4) actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. See Floyd v. WBTW, No. 4:06-cv-3120-RBH, 2007 WL 4458924, *2 (D.S.C. Dec. 17, 2007). Slander is the spoken version of defamation. Holtzscheiter, 506 S.E.2d at 508; Lashley v. Spartanburg Methodist Coll., No. 7:18-CV-2957-JD-KFM, WL 8014689, at *26 (D.S.C. Dec. 20, 2021), report and recommendation adopted, No. 7:18-CV-02957-KFM, 2022 WL 872604 (D.S.C. Mar. 24, 2022) (citing Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 133-34, 334 S.C. 469 (S.C. 1999)). The undersigned begins the analysis by noting that after a review of Plaintiff's Amended Complaint and subsequent Response, it is unclear what alleged defamatory statements were made by Defendant Marcus, or who Plaintiff alleges was involved in his “defamation of character” and “slander.” Thus, the undersigned notes that Plaintiff fails to allege an essential element of this clam.
In his Motion, Defendant Marcus first argues that he enjoys immunity pursuant to the South Carolina Tort Claims Act (the “SCTCA”) from being sued for state tort law claims. The South Carolina Tort Claims Act (the “SCTCA”) is the exclusive civil remedy for any tort committed by a governmental entity, its employees, or its agents, except as provided for in Section 15-78-70(b). See S.C. Code Ann. § 15-78-20(b). Under § 15-78-20(b), if an employee of a governmental entity is acting outside of the scope of his or her official duties or his or her conduct constitutes actual fraud, actual malice, intent to harm or a crime involving moral turpitude, then the immunity afforded under the SCTCA will not apply. Stated another way, the SCTCA governs all tort claims against governmental entities and is the exclusive remedy available to a plaintiff suing that entity or its employees. Flateau v. Harrison, 584 S.E.2d 413, 416, 355 S.C. 197 (S.C. Ct. App. 2003). An employee of a governmental entity is immune for suit for tortious acts committed within the scope of his or her official duties. Id.
The undersigned agrees with Defendant Marcus that pursuant to the SCTCA, he is immune from suit. Alternatively, as previously discussed above, Defendant Marcus argues that Plaintiff does not identify any slanderous statements made by Defendant Marcus, nor does he specify what conduct on the part of Defendant Marcus is alleged to have been a “defamation of character.” Def.'s Br. at 16. Accordingly, the undersigned agrees that Plaintiff fails to assert an essential element of a defamation claim.Moreover, even viewing the facts in a light most favorable to Plaintiff, assuming that the alleged defamatory statements were those statements found in Defendant Marcus's arrest warrant, as pointed out by Defendant, those statements are privileged and cannot support a claim for defamation. See Paul v. Davis, 424 U.S. 693, 697 (1976); see also Jones v. SCDC, NO. 5:12-cv-3554-RBH-KDW, 2013 WL 3880175, at *4 (D.S.C. July 26, 2013) (noting defamation of character is not actionable under § 1983); see Tharp v. Media General, Inc., No. 4:11-cv-1819-TLW, 2011 WL 13142634, at *2 (D.S.C. Oct. 21, 2011) (“South Carolina law clearly recognizes a fair report privilege in defamation actions such as this one where the complained of publication is based on a judicial record or other official public act or report.”). Further, as previously noted, the evidence in the record shows that there was probable cause for Plaintiff's arrest. Accordingly, for the reasons set forth above, the undersigned recommends granting summary judgment to Defendant Marcus on Plaintiff's defamation claims.
Defendant Marcus alternatively argues that Plaintiff's defamation claim is barred by the applicable statute of limitations. Defendant Marcus points out that South Carolina law has a two-year statute of limitations period for defamation claims. See S.C. Code Ann § 15-3-550; see also S.C. Code Ann. § 15-78-110 (noting that under the SCTCA, there is a two-year statute of limitations period). Defendant Marcus argues that Plaintiff signed his original Complaint on May 6, 2020. See ECF No. 1 at 12. Thus, any alleged statement made prior to May 6, 2020 would be time-barred. Plaintiff's Complaint (and Amended Complaint) state that the events giving rise to his filing of this lawsuit occurred on October 28, 2019. Thus, Defendant Marcus argues the statute of limitations bars Plaintiff's defamation claim. However, even more problematic is the fact that Plaintiff does not identify what the alleged defamatory statements or remarks are that were attributable to Defendant Marcus. Thus, the undersigned does not reach the analysis of determining when these statements were allegedly made.
4. PLRA Strike
Defendants Marcus argues that, pursuant to § 1915(e) and § 1915A, this case should count as a strike against Plaintiff pursuant to the Prison Litigation Reform Act (the “PLRA”). Defendant Marcus argues that Plaintiff's claims are frivolous in that they lacked legal merit, that Plaintiff knew they were false, and that he has no evidence to support them. Def.'s Br. at 20-21. Defendant Marcus also points out that Plaintiff's claims that he was defamed are more his expressions of frustration at his arrest and being charged with murder. Id. at 20. Further, Defendant Marcus argues that once Plaintiff was convicted at trial, he should have voluntarily dismissed this case, but he chose not to do so. Id. The undersigned has considered these arguments, and after reviewing all pleadings in this case, does not find Plaintiff's Amended Complaint to have been filed frivolously, particularly because it was filed prior to his conviction. Therefore, the undersigned recommends that the district court deny the request to consider this action as a strike under the Prison Litigation Reform Act.
IV. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Defendant's Summary Judgment Motion, ECF No. 57, as to all claims alleged in Plaintiff's Amended Complaint.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).