Opinion
2:23-cv-00236-BHH-MGB
02-26-2024
Marlin Elrico Coffy, Sr., Plaintiff, v. Officer Michael S. Hannon, Jr.. #692; PFC Kevin Dani Herbst, #681; Sgt. Robert Blaschke, #665; FTO Douglas Richards, #717; and PFC Ditrrich,[1] Defendants.
REPORT AND RECOMMENDATION AND ORDER
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Marlin Elrico Coffy, Sr. (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, brings this action seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff challenges his arrest for armed robbery, asserting that he was racially profiled and subsequently framed for armed robbery by officers with the Mount Pleasant Police Department. (See Dkt. No. 18.). Currently before the Court is a Motion to Dismiss filed by Defendants Officer Michael S. Hannon, Jr., PFC Kevin Dani Herbst, Sgt. Robert Blaschke, FTO Douglas Richards, and PFC Dittrich (“Defendants”) (Dkt. No. 46); Plaintiff's Motion to Appoint Counsel (Dkt. No. 62); and Plaintiff's Motion to Amend the Summonses (Dkt. No. 64).
Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge. Under this authority, the undersigned is authorized: (1) to review the Motion to Dismiss and submit a recommendation to the District Judge; (2) to review Plaintiff's Motion to Appoint Counsel and Motion to Amend the Summonses and to issue an order on these motions. For the following reasons, the undersigned recommends denying the Motion to Dismiss. The undersigned further denies Plaintiff's Motion to Appoint Counsel and Motion to Amend the Summonses.
BACKGROUND
In this action filed on January 18, 2023, Plaintiff challenges his arrest at the Walmart Supercenter located at 3000 Proprietors Place in Mount Pleasant, South Carolina. According to the Amended Complaint, Plaintiff was racially profiled as a shoplifter by Walmart loss prevention employees on or around June 27, 2021, and subsequently framed for armed robbery by officers with the Mount Pleasant Police Department. (Dkt. No. 18 at 2.) Plaintiff maintains that he paid for his items before exiting the store and did not have a weapon on his person at any point during his visit. (Id. at 2-3.) Nevertheless, Plaintiff contends that Defendants conspired against him to effectuate the arrest.
Specifically, Plaintiff claims that Defendants arrested him despite receiving confirmation from Walmart employees that “nothing was taken from the store by [Plaintiff]” and reviewing video footage that verified Plaintiff “committed no crime.” (Id. at 3.) Plaintiff contends that Defendants ultimately resorted to using tools found in his car-which he claims were in the vehicle before he arrived at the Walmart-to manufacture evidence that would satisfy the elements of an armed robbery charge. (Id.) Plaintiff further alleges that Defendants intentionally omitted from their arrest reports any mention of the money that was apparently found on his person at the time of his arrest so that he would appear “as a broke black man who intended to go to Wal-mart to commit a crime.” (Id.)
On May 22, 2023, the undersigned issued a Report and Recommendation (“R&R”) construing the Amended Complaint as raising claims of false arrest and denial of equal protection. (Dkt. No. 21 at 3.) The R&R recommended that Plaintiff's claims for equitable relief were subject to summary dismissal under the Younger abstention doctrine, and that his Fourteenth Amendment claim for monetary damages was subject to summary dismissal for failure to state a claim. (Id. at 5-7.) With respect to Plaintiff's Fourth Amendment claim for monetary damages, however, the R&R recommended that Plaintiff's claim be stayed pending the outcome of his underlying state criminal proceedings. (Id. at 8-10.) The United States District Judge ultimately dismissed all claims for equitable relief and adopted the undersigned's recommendation of dismissal regarding Plaintiff's damages claim under the Fourteenth Amendment. (Dkt. No. 35.) With respect to Plaintiff's remaining Fourth Amendment damages claim, the District Judge remanded the matter for further proceedings, noting that Plaintiff's state criminal action may have been resolved since the filing of the R&R. (See id. at 5, stating that “a stay of [Plaintiff's] Fourth Amendment claim for monetary damages may no longer be appropriate.”).
On December 5, 2023, the undersigned issued an Order noting that Plaintiff's state court records indicated his armed robbery charge was dismissed pursuant to a nolle prosequi entry on September 29, 2023. (Dkt. No. 39 at 2.) The Court therefore lifted the stay on Plaintiff's Fourth Amendment claim for monetary damages and authorized service on Defendants. (Id.) The Clerk of Court issued the summonses that were submitted by Plaintiff. (Dkt. No. 40.)
On December 29, 2023, Defendants filed a Motion to Dismiss. (Dkt. No. 46.) Plaintiff filed a response in opposition on February 2, 2024. (Dkt. No. 63.) That same day, Plaintiff also filed a Motion to Appoint Counsel and a Motion to Amend the Summonses. (Dkt. Nos. 62; 64.) Defendants did not respond to Plaintiff's Motions and did not file a reply brief in support of their Motion to Dismiss. The Motions are ripe and ready for the Court's review.
STANDARD
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
I. Defendants' Motion to Dismiss (Dkt. No. 46); Plaintiff's Motion to Amend the Summonses (Dkt. No. 64)
In their Motion to Dismiss, Defendants argue that dismissal is appropriate because: (1) Plaintiff failed to properly effectuate service on them; (2) Plaintiff's false arrest claim fails as a matter of law; and (3) Plaintiff has failed to state a claim against Defendants in their official capacities. (Dkt. No. 46.)
A. Service
Defendants first argue that the Court lacks personal jurisdiction over them because they were not properly served. Rule 4(e) of the Federal Rules of Civil Procedure governs the service of process upon an individual in the United States and provides that it can be accomplished pursuant to state law or by either: (A) delivering a copy of the summons and complaint to the individual personally; (B) leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone of suitable age and discretion who reside there; or (C) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. “[A]n agent must be one who is authorized either by appointment or law to receive service.” Tann v. Fisher, 276 F.R.D. 190, 192 (D. Md. 2011), aff'd, 458 Fed. App'x. 268 (4th Cir. 2011) (internal citations omitted).
Here, Defendants argue that Plaintiff's Amended Summons and Complaint was served on the Clerk of Council for the Town of Mount Pleasant, and “Plaintiff has not shown that [the Clerk] was authorized to accept service for any of the Defendants.” (Dkt. No. 46 at 2.) Defendants further state that “two of the five Defendants are no longer employees of the Town,” and “at least one of the Defendants resides outside the state of South Carolina.” (Id.)
In response, Plaintiff asks that new summonses be issued for Defendants at the same address and that the United States Marshals Office be informed “that no one that is not designated by law to accept service of process on behalf of Defendants in the above case can[] be left with [a] summons.” (Dkt. No. 63.) To that end, Plaintiff has separately filed a Motion to Amend the Summonses and provided proposed summonses for the Court to issue. (Dkt. Nos. 64; 64-1.)
Based on the foregoing, it appears Defendants have not been properly served in accordance with Rule 4(e). However, the “provisions of [Rule 4] should be liberally construed to effectuate service and uphold the jurisdiction of the court, thus insuring the opportunity for a trial on the merits.” Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963). Noncompliance with Rule 4 does not mandate dismissal where the necessary parties have received actual notice of the suit and have not been prejudiced by the technical defect in service. Id. at 668-69. “[T]he real purpose of service of process is to give notice to the defendant[.]” Scott v. Md. State Dep't of Labor, 673 Fed. App'x. 299, 304 (4th Cir. 2016).
Here, the fact that Defendants are represented by counsel and moving to dismiss is common sense evidence that they have notice of the claims. “Ordinarily, dismissal is proper when there is prejudice to the defendant or where proper service is unlikely to be accomplished.” Reinhold v. Tisdale, No. 8:06-CV-3311-MBS-BHH, 2007 WL 2156661, at *3 (D.S.C. Apr. 30, 2007). Defendants have made no demonstration that they are prejudiced. See, e.g., Wade v. Alamance Cty., No. 1:19-CV-619, 2020 WL 3846336, at *4 (M.D. N.C. July 8, 2020) (“Though Plaintiff has failed to comply with the rules [regarding proper service], the court finds the rules merit a ‘liberal construction' since Defendant Alamance DSS has ‘actual notice' of the suit.”); Alexander v. Stirling, No. 6:19-CV-0215-HMH, 2019 WL 7605892, at *3 (D.S.C. Dec. 6, 2019) (finding no prejudice to defendants where they had notice of claim). And the undersigned cannot find that service on Defendants is “unlikely to be accomplished” based on the current record.
Accordingly, the undersigned recommends that dismissal not be granted on the basis of lack of proper service. Instead, the Court should allow Plaintiff additional time to effectuate proper service upon Defendants. Accordingly, defense counsel is ORDERED to provide a status update by March 4, 2024, that states: (1) the name of the agent authorized to accept service for those Defendants still employed by the Town of Mount Pleasant; and (2) whether the Town can provide the last known address of those Defendants no longer employed by the Town. Defense counsel can provide any personal addresses directly to chambers. Because the information from this status report is needed to effectuate service, the Court DENIES Plaintiff's Motion to Amend the Summonses (Dkt. No. 64) without prejudice. Once the Court receives defense counsel's status report, the undersigned will issue any necessary instructions to effectuate service.
In his Motion to Amend the Summonses, Plaintiff also states that he “cannot provide Agent Dittrich's first name at this time” and he cannot “properly spell the agent's name.” (Dkt. No. 64.) He therefore asks that the Court strike Defendant Agent Dittrich's name “from his 1983 claim at this time.” (Id.) Defendants' Motion to Dismiss indicates that counsel knows the proper spelling of this Defendant's name, however. (Dkt. No. 46 at 1.) Accordingly, defense counsel should include in his status report the proper spelling of Defendant Dittrich's first and last name, so that service can be completed for this individual.
B. Fourth Amendment Violation
Defendants next argue that Plaintiff's false arrest claim fails as a matter of law. (Dkt. No. 46 at 3-5.) Here, Defendants argue that “the grand jury's finding of probable cause for the Plaintiff's armed robbery should bar his false arrest claim in this case.” (Id. at 4.) In support, Defendants have submitted with their Motion a copy of the signed indictment and note that the indictment is also signed by an Assistant Solicitor. (Id.; Dkt. No. 46-1.) According to Defendants, this signature shows “not only that the Solicitor's office believed probable cause existed for this charge but that the grand jury's finding of probable cause was not based on any of the Defendant's [sic] statements.” (Dkt. No. 46 at 4.) In response, Plaintiff states he is voluntarily dismissing his “entire false arrest claim” and is “suing Defendants solely on [a] Fourth Amendment claim of illegal search/seizure.” (Dkt. No. 63 at 2-3.)
As an initial matter, Plaintiff's attempt to distinguish his Fourth Amendment claim from one for false arrest is immaterial for purposes of the Court's analysis here. Defendants argue that Plaintiff's Fourth Amendment claim fails because there was probable cause to support his arrest, and this probable cause inquiry is identical regardless of the specific Fourth Amendment violation alleged by Plaintiff. See, e.g., Graham v. Connor, 490 U.S. 386, 396 (1989) (“The Fourth Amendment is not violated by an arrest based on probable cause.”); Robinson v. Greer Police Dep't, No. 6:24-cv-00146-HMH-JDA, 2024 WL 557952, at *4 (D.S.C. Jan. 23, 2024) (“[U]nder § 1983, a public official cannot be charged with unlawful search and seizure, false arrest, or malicious prosecution when the search and arrest are based on probable cause”), adopted by, 2024 WL 555873 (D.S.C. Feb. 12, 2024); Jackson v. Carin, 646 F.Supp.3d 656, 665 (D. Md. 2022) (considering “two separate claims under 42 U.S.C. § 1983 for the alleged Fourth Amendment violations - one based on unlawful detention and the other based on malicious prosecution”; “To prevail on those claims, Mr. Jackson must establish that Detective Carin violated his Fourth Amendment rights, and more specifically, that the warrant Detective Carin obtained for Mr. Jackson's arrest was not supported by probable cause.”).
It is well-established that “an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Staggs v. Spartanburg Cnty. Det. Ctr., No. 8:22-cv-3852-HMH-JDA, 2022 WL 17742423, at *6 (D.S.C. Nov. 30, 2022) (referencing Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012)), adopted by, 2022 WL 17741327 (D.S.C. Dec. 16, 2022); see also Jordan v. S.C. Dep't of Corr., No. 2:22-cv-3521-DCN-SVH, 2022 WL 13840029, at *2 (D.S.C. Oct. 20, 2022) (explaining that a grand jury indictment is affirmative evidence of probable cause sufficient to defeat claims for false arrest under § 1983). However, a grand jury's decision to indict will not necessarily shield a police officer “who deliberately supplied misleading information that influenced the decision.” Massey v. Ojaniit, 759 F.3d 343, 356-57 (4th Cir. 2014); see also Manuel v. City of Joliet, Ill., 580 U.S. 357, 369 n.8 (2017) (explaining that if an indictment “is tainted . . . by fabricated evidence[,] and the result is that probable cause is lacking, then the ensuing pretrial detention violates the confined person's Fourth Amendment rights”). To contravene the Constitution, “the false statements or omissions must be ‘material,' that is, necessary to the finding of probable cause.” See Massey, 759 F.3d at 357 (internal quotation marks and citations omitted).
Here, the Amended Complaint asserts that Walmart employees ultimately confirmed that Plaintiff did not take anything from the store, and that the video footage reviewed by Defendants showed the same. (See Dkt. No. 18 at 2.) Nevertheless, Defendants still arrested Plaintiff, apparently relying on tools found in his car-which Plaintiff claims to have owned-to generate evidence in support of the armed robbery charge. (See id. at 2-3.) Without this allegedly fabricated evidence, Plaintiff suggests that Defendants would be unable to satisfy the elements of an armed robbery charge as prescribed under South Carolina law. (Id. at 3-4.) Further, in his response brief, Plaintiff alleges that the “officers purposely misled the grand jury empanelment with false documents and evidence by taking tools out of [Plaintiff's] vehicle and us[ing] them as evidence to obtain probable cause altho[ugh] the tools were with Plaintiff when he arrived at the alleged crime location.” (Dkt. No. 63-3 at 2.) According to Plaintiff, the “officers (Defendants) used [Plaintiff's] own tools to frame him with armed robbery.” (Id.) Plaintiff also claims that “[t]he only reason the Assistant Solicitor believed probable cause existed is because he or she was misled by officers by using tools found in Plaintiff's car as evidence in the case.” (Id. at 3.)
Based on the foregoing, the undersigned recommends Plaintiff has stated a § 1983 claim for violation of the Fourth Amendment by alleging that the indictment charging Plaintiff for armed robbery was obtained by the grand jury's and Assistant Solicitor's reliance on Defendants' deliberately supplied misleading evidence. See Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 914, 919 (holding that plaintiff stated a § 1983 claim based on Fourth Amendment violation where “a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime,” particularly “police fabrications about [seized pills'] content” asserted to be illegal substances); Everette-Oates v. N. Carolina Dep't of State Treasurer, No. 5:16-cv-623-FL, 2017 WL 2269524, at *10 (E.D. N.C. May 23, 2017) (“In this case, plaintiff has pleaded alleged facts that, when viewed in light most favorable to plaintiff, state a claim against defendant Chapman for having concealed or fabricated material evidence in presentation to the grand jury, in violation of plaintiff's Fourth Amendment rights.”).While Defendants point to the language of the indictment as proof that the grand jury and Assistant Solicitor did not base probable cause “on any of the Defendant's statements,” the undersigned cannot draw that same conclusion at this early stage in the proceedings. (Dkt. Nos. 46 at 4; 46-1 at 3.) Rather, the record needs to be developed on this issue.
Defendants' additional arguments for dismissal of Plaintiff's Fourth Amendment claim are unavailing. Specifically, Defendants assert that Plaintiff's false arrest claim fails because there was probable cause to arrest him for shoplifting based on his own allegations. (Dkt. No. 46 at 5 (citing Stavis v. Reynolds, No. 2:09-cv-2272-DCN-RSC, 2010 WL 1294113, at *3 (D.S.C. Mar. 5, 2010) “A claim for false arrest turns only on whether probable cause existed to arrest a defendant, and . . . it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.”), aff'd, 2010 WL 1257344 (D.S.C. Mar. 29, 2010).) Here, Defendants point to Plaintiff's allegation that “the Walmart store loss prevention officers and employees told the police officers that it was an attempted shoplifting ....” (Dkt. No. 17 at 3.) However, assuming arguendo that Plaintiff's Fourth Amendment claim is one for false arrest, it should not be dismissed on this basis. At this stage in the proceedings, the undersigned cannot find that there was probable cause to arrest Plaintiff for attempted shoplifting. Again, that is an issue better addressed on a more developed record.
Finally, Defendants point to a federal case Plaintiff previously filed with his brother, Michael J. Coffy. (Id. at 3-4 (citing Coffy v. Walmart, Case No. 2:22-cv-3100-BHH). Defendants assert that this prior case was brought against mostly the same Defendants and made “almost identical” allegations arising from the same incident. (Id. at 3.) Following Plaintiff's termination from that docket, the Magistrate Judge in Coffy v. Walmart recommended the case be summarily dismissed. See Case No. 2:22-cv-3100-BHH, Dkt. No. 10. Despite Defendants' arguments here, the undersigned cannot find that the prior lawsuit necessitates finding Plaintiff's Fourth Amendment claim in this action fails as a matter of law. The allegations in the cases are not identical, and the instant action has survived the summary dismissal stage.
C. Claim against Defendants in their Official Capacities
The Amended Complaint sues Defendants in their individual and official capacities. (Dkt. No. 18 at 4.) In their Motion to Dismiss, Defendants argue that Plaintiff's § 1983 claim against them in their official capacities should be dismissed for failure to state a claim. (Dkt. No. 46 at 5.)
Suing someone in his official capacity is “‘only another way of pleading an action against an entity of which [he] is an agent.'” Wilson v. Slager, No. 2:15-cv-2170-DCN, 2016 WL 1253179, at *5 (D.S.C. Mar. 31, 2016) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). To state a claim for official capacity liability, the plaintiff must identify some “policy or custom” followed by the defendant's employer that “played a part in the violation of federal law.” King v. Rubenstein, 825 F.3d 206, 223 (4th Cir. 2016) (quoting Graham, 473 U.S. at 166).
According to the Fourth Circuit, an official policy or custom can arise in four ways:
(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that manifest[s] deliberate indifference to the rights of citizens; or (4) through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law.Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (alteration in original) (citation and internal quotation marks omitted) (quoting Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)).
Upon review, Plaintiff alleges no facts suggesting that Defendants were following the custom or policy of the Town of Mount Pleasant or the Mount Pleasant Police Department when they allegedly violated Plaintiff's rights. In his response brief, Plaintiff points to the allegations in his own case to support finding Defendants “were acting pursuant to an official practice, policy, and custom of the Town of Mount Pleasant when the officers arrested him on June 27, 2021.” (Dkt. No. 63 at 3-4.) However, allegations based on the incident at issue do not state a claim for official capacity liability. See McSheffrey v. Wilder, No. 2:21-cv-630, 2023 WL 9188005, at *6 (E.D. Va. Nov. 16, 2023) (“McSheffrey's conclusion that failing to train Wilder, fabricating indictments, and arresting citizens without probable cause are the custom and policy of the Norfolk Police Department or Norfolk Commonwealth's Attorney's Office based on the allegations in his own case are insufficient to state a claim for official capacity liability.”), adopted by, 2024 WL 115192 (E.D. Va. Jan. 10, 2024); see also Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987) (“[P]roof of a single violation . . . cannot support an inference that the violation resulted from a municipally condoned custom of comparable practices . . .”) (citation and internal quotation marks omitted).
Accordingly, the undersigned recommends any § 1983 claims brought against Defendants in their official capacities should be dismissed.
II. Plaintiff's Motion to Appoint Counsel (Dkt. No. 62)
Plaintiff has separately moved for the Court to appoint him counsel. (Dkt. No. 62.) According to Plaintiff, he has a “very extremely high disadvantage” in litigating this case because of “his less[er] knowledge and understanding of the law.” (Id.) He claims that he cannot afford an attorney. (Id.)
There is no constitutional right to have counsel appointed in a civil case. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). This court has discretion to appoint counsel for an indigent in a civil action. 28 U.S.C. § 1915(e); Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir. 1971). The court, however, may appoint counsel in § 1983 cases only when exceptional circumstances exist. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The Fourth Circuit has stated that the existence of exceptional circumstances “will turn on the quality of two basic factors-the type and complexity of the case, and the abilities of the individuals bringing it.” Brock v. City of Richmond, 983 F.2d 1055 (4th Cir. 1993) (unpublished table decision) (quoting Whisenant, 739 F.2d at 163).
After a review of the pleadings and other documents Plaintiff has filed with the court, the Court finds that, at this time, this is not the type of case which presents factors that clearly reflect a need for Plaintiff to have counsel appointed. The case itself does not appear atypically complex, and Plaintiff has shown himself able to represent his interests to this point in the lawsuit. Based on the foregoing, Plaintiff's Motion to Appoint Counsel (Dkt. No. 62) is DENIED.
CONCLUSION
For the above reasons, the undersigned RECOMMENDS that the Court DENY Defendants' Motion to Dismiss (Dkt. No. 46).
IT IS SO RECOMMENDED.
Additionally, for the above reasons, the undersigned DENIES without prejudice Plaintiff's Motion to Amend the Summonses (Dkt. No. 64). Relevant here, the defense counsel is ORDERED to provide a status update by March 4, 2024, that states: (1) the name of the agent authorized to accept service for those Defendants still employed by the Town of Mount Pleasant; (2) whether the Town can provide the last known address of those Defendants no longer employed by the Town; and (3) the proper spelling of Defendant Dittrich's first and last name. Defense counsel can provide any personal addresses directly to chambers. Once the Court receives defense counsel's status report, the undersigned will issue any necessary instructions to effectuate service.
The undersigned further DENIES Plaintiff's Motion to Appoint Counsel (Dkt. No. 62).
IT IS SO ORDERED.
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 835
Charleston, South Carolina 29402
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).