Opinion
C. A. 6:21-cv-1066-HMH-JDA
04-21-2021
Seuvarrggio S. Rector, Plaintiff, v. Greenville County Sheriff's Office, Greenville County Detention Center, Greer City Police Department, The County of Greenville, The County of Spartanburg, The City of Greer, The State of South Carolina, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Seuvarrggio Rector (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging Defendants violated his rights under the United States Constitution. [Doc. 1.] Plaintiff filed this action in forma pauperis under 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. For the reasons explained below, this action is subject to summary dismissal.
BACKGROUND
Plaintiff is a pretrial detainee and is currently incarcerated at the Greenville County Detention Center. [Doc. 1 at 3.] Plaintiff contends Defendants violated his rights under the Fourth Amendment by subjecting him to unlawful searches, seizures, and imprisonment and invading his privacy, and the Fifth and Fourteenth Amendments by violating his due process rights. [Id. at 4.]
Plaintiff alleges that, on December 30, 2018, a detective with the Greenville County Sheriff's Office, working together with the Greer City Police Department, was investigating a “Crimestoppers tip” within the jurisdiction of the Greer City Limits in Spartanburg County. [Id. at 10.] The detective entered private property with the “false representation of a warrant” and temporarily apprehended Plaintiff, searched him, and searched and seized his Mercedes Benz. [Id.] Plaintiff contends the searches and seizures were unlawful. [Id.] On June 12, 2020, Plaintiff was served with warrants for charges at case No. 2019A2320500015, 2019A2320500017, and 2019A2320500018. [Id.] Additionally, on November 5, 2019, the Greer City Police Department placed a hold on Plaintiff related to other charges for attempted murder and first degree assault and battery. [Id.] Plaintiff also contends that Judge Verdin granted him the right to defend himself pro se in June 2020, although Solicitor Mark Moyer argued that the Judge should appoint co-counsel. [Id. at 11.] Further, Judge Miller prohibited Plaintiff's witness, Cass Gordon, from writing a motion on his behalf. [Id.] Plaintiff makes other similar allegations about the conduct of Solicitor Moyer, Judge Verdin, and Judge Miller during various proceedings in his pending state court actions. [Id.]
For his relief, Plaintiff seeks an award of money damages for the violation of his constitutional rights in the amount of $1.5 million and compensation for the loss of his Mercedes Benz in the amount of $22,500. [Id. at 9.]
The Court takes judicial notice that Plaintiff has been charged with two counts of trafficking in methamphetamine or cocaine base, possession of a weapon during a violent crime, and two counts of kidnapping in the Spartanburg County Court of General Sessions at case No. 2019A2320500015, 2019A2320500017, 2019A2320500018, 2019A2320500241, and 2019A2320500242. See Spartanburg County Seventh Judicial Circuit Public Index, available at https://publicindex.sccourts.org/Spartanburg/PublicIndex/ PISearch.aspx (search by case No. 2019A2320500015, 2019A2320500017, 2019A2320500018, 2019A2320500241, and 2019A2320500242) (last visited Apr. 20, 2021). Those charges all remain pending against Plaintiff at this time.
See also Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Further, Plaintiff has been charged with murder, possession of a weapon during a violent crime, kidnapping, and conspiracy in the Greenville County Court of General Sessions at case No. 2019A2330200142, 2019A2330200143, 2019A2330200144, and 2019A2330200145. See Greenville County Thirteenth Judicial Circuit Public Index, available at https://publicindex.sccourts.org/ Greenville/PublicIndex/PISearch.aspx (search by case No. 2019A2330200142, 2019A2330200143, 2019A2330200144, and 2019A2330200145) (last visited Apr. 20, 2021). Those charges also remain pending against Plaintiff at this time.
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which authorizes the district court to dismiss a case if it is satisfied 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). Further, Plaintiff appears to be a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would still be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the Court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the Court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
The Complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (quoting 42 U.S.C. § 1983). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff contends that Defendants violated his Fourth, Fifth, and Fourteenth Amendment rights. [Doc. 1 at 4.] Specifically, Plaintiff appears to allege that Defendants unlawfully searched and seized him and his vehicle without probable cause and in violation of due process. [Id. at 10-11.] Despite Plaintiff's contentions, this action is subject to summary dismissal for the reasons below.
Defendants are entitled to dismissal
First, none of the named Defendants are “persons” who may be sued under § 1983. It is well settled that only “persons” may act under color of state law, and, therefore, a defendant in a § 1983 action must qualify as a “person.” See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Rutland v. Dorchester Cty. Det. Ctr., No. 8:09-cv-274-SB, 2009 WL 1704331, at *2 (D.S.C. June 17, 2009) (“A defendant in a § 1983 action must qualify as a ‘person.'”). As explained below, Defendants are each entitled to dismissal from this action because they are not “persons.”
To the extent any Defendant is sued under a theory of municipal liability, rather than as a “person, ” Plaintiff has failed to state a claim for relief under such a theory. The Court will address municipal liability claims in the section below.
Although Plaintiff has not named Solicitor Mark Moyer and Judges Verdin and Miller as Defendants, he makes numerous allegations against them in his Complaint. To the extent Plaintiff intends to name these individuals as Defendants, they are entitled to immunity from suit. Solicitor Moyer is entitled to prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 403 (1976) (holding that prosecutors, when acting within the scope of their duties, have absolute immunity from liability under § 1983 for alleged civil rights violations committed in the course of proceedings that are “intimately associated with the judicial phase of the criminal process”); Dowdle v. Skinner, No. 6:12-cv-3253-DCN, 2013 WL 5771199, at *2 (D.S.C. Oct. 24, 2013) (holding solicitor entitled to prosecutorial immunity). Additionally, it is well settled that judges have absolute immunity from a claim for damages arising out of their judicial actions unless they have acted in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Accordingly, Judges Verdin and Miller would be entitled to immunity and, therefore, dismissal from this action.
The Greenville County Sheriff's Office is entitled to summary dismissal from this action because it is not a “person” subject to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (explaining that neither the state nor its agencies is a “person” within § 1983); Ramirez v. Anderson Cty. Sheriff's Office, No. 1:14-cv-3217-TMC-SVH, 2016 WL 4394505, at *2 (D.S.C. July 25, 2016) (explaining the sheriff's office, as an arm of the state, is not a “person” within the meaning of § 1983), Report and Recommendation adopted by 2016 WL 4266130 (D.S.C. Aug. 12, 2016).
The Greenville County Detention Center is entitled to summary dismissal from this § 1983 action because it is a facility or building and, as such, cannot be sued as a “person.” See Preval v. Reno, 57 F.Supp.2d 307, 310 (E.D. Va. 1999) (“[T]he Piedmont Regional Jail is not a ‘person,' and therefore not amenable to suit under 42 U.S.C. § 1983.”) aff'd in part, modified in part on other grounds, vacated in part on other grounds by 203 F.3d 821 (4th Cir. 2000); Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D. N.C. 1989) (“[T]he jail is not a person amenable to suit.”); Williams v. Dorchester Cty. Det. Ctr., 987 F.Supp.2d 690, 696 (D.S.C. 2013); Morrison v. Greenville Cty. Det. Ctr., No. 4:17-cv-2657-JMC-TER, 2017 WL 7732598, at *3 (D.S.C. Oct. 10, 2017), Report and Recommendation adopted by 2018 WL 936383 (D.S.C. Feb. 16, 2018).
The Greer City Police Department is entitled to summary dismissal from this § 1983 action because it is a building or a group of officers in a building and, as such, cannot be sued as a “person.” See Miller v. Rock Hill Police Dep't, No. 2:09-cv-737-JFA-RSC, 2009 WL 1160181, at *3 (D.S.C. Apr. 29, 2009), aff'd, 333 Fed.Appx. 703 (4th Cir. 2009); see also Post v. City of Fort Lauderdale, 750 F.Supp. 1131, 1132 (S.D. Fla. 1990) (dismissing city police department as improper defendant in § 1983 action because it was not a “person”); Shelby v. City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga. 1984) (dismissing police department as party defendant because it was merely a vehicle through which city government fulfills policing functions).
Defendants County of Greenville and County of Spartanburg are also not “persons” and should be dismissed from this action. See Louis v. Spotsylvania Cty., No. 1:17-cv-1215-LMB-JFA, 2017 WL 8786969, at *1 (E.D. Va. Nov. 30, 2017), aff'd 719 Fed.Appx. 283 (4th Cir. 2018); Gambrell v. Metts, No. 2:10-cv-1969-CMC-RSC, 2010 WL 3463917, at *2 (D.S.C. Aug. 12, 2010), Report and Recommendation adopted by 2010 WL 3463900 (D.S.C. Sept. 3, 2010).
The City of Greer is also not a person and cannot be sued under § 1983. See Garvin v. Owen, No. 2:09-cv-0202-HMH-RSC, 2009 WL 653007, at *4 (D.S.C. Mar. 12, 2009), aff'd, 340 Fed.Appx. 169 (4th Cir. 2009).
The State of South Carolina is entitled to dismissal because it cannot be sued under § 1983 as it is not a “person.” See, e.g., Cobb v. South Carolina, No. 2:13-cv-02370-RMG, 2014 WL 4220423, at *6 (D.S.C. Aug. 25, 2014); Ackbar v. South Carolina, No. 4:17-cv- 1019-RMG-TER, 2017 WL 2348460, at *2 (D.S.C. May 17, 2017), Report and Recommendation adopted by 2017 WL 2364302 (D.S.C. May 30, 2017).
Plaintiff's claims are subject to dismissal
Further, even if Plaintiff had named a proper party as a defendant subject to suit under § 1983, his claims nevertheless would be subject to dismissal for the reasons below.
Monell Claim
First, notwithstanding the Court's conclusion that none of the named Defendants are “persons” subject to suit under 1983, Plaintiff may be asserting his claims against Defendants under a municipal liability theory, commonly called a “Monell claim.” See Piccirilli v. Spartanburg Cty., No. 7:20-cv-3259-DCC-JDA, 2020 WL 8271660, at *5 (D.S.C. Sept. 21, 2020) (discussing requirements for a Monell claim), Report and Recommendation adopted by 2021 WL 274307 (D.S.C. Jan. 27, 2021). However, to the extent that any Defendants are sued as municipal entities, they are subject to summary dismissal under a theory of municipality liability. A municipality or other local government entity may be held liable under § 1983 only “where the constitutionally offensive acts of [ ] employees are taken in furtherance of some municipal ‘policy or custom.'” See Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citation omitted); see also Wolf v. Fauquier Cty. Bd. of Supervisors, 555 F.3d 311, 321 (4th Cir. 2009) (“A county may be found liable under 42 U.S.C. § 1983 only ‘when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.'”) (citations omitted). Further, the doctrine of respondeat superior is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the acts of employees, absent official policy or custom resulting in an illegal action. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694-95 (1978). Plaintiff fails to identify any governmental policy or custom of Defendants that caused his constitutional rights to be violated. See, e.g., Roberts v. City of Forest Acres, 902 F.Supp. 662, 669 (D.S.C. 1995) (finding the plaintiff's allegations, similar to those made here, cannot serve as the basis for municipal liability). Indeed, Plaintiff's pleadings are devoid of any allegations whatsoever against Defendants, and the allegations all concern individual officers, solicitors, and judges, who are not named as defendants in this action. Therefore Plaintiff's claims against the named Defendants are subject to summary dismissal.
Younger Abstention Doctrine
Next, the crux of this action appears to be a challenge to Plaintiff's arrest on the pending charges noted above, the seizure of his vehicle, and the pending charges against him in the state court. To the extent Plaintiff is seeking release from custody, such relief is not available in this civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (explaining a challenge to the duration of confinement is within the core of habeas corpus).
Further, to the extent Plaintiff's claims seek injunctive relief related to his pending state court criminal actions, such claims are not properly before this Court based on the Younger abstention doctrine. Liberally construed, the Complaint appears to assert that the pending state court criminal proceedings against Plaintiff are improper and violate his constitutional rights. Granting Plaintiff's requested relief, however, would require this Court to interfere with or enjoin the pending state court criminal proceedings against him. As discussed below, because a federal court may not award relief that would affect pending state proceedings absent extraordinary circumstances, this Court should abstain from interfering with it.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996) (en banc) (internal quotation marks omitted). The Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44; see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (explaining the circumstances when Younger abstention is appropriate).
From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled the following test to determine when abstention is appropriate: “[1] there are ongoing state judicial proceedings; [2] the proceedings implicate important state interests; and [3] there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Here, Plaintiff is involved in ongoing state court criminal proceedings related to his arrest for various drug and weapon charges, and Plaintiff asks this Court to award relief for alleged constitutional violations related to his pending criminal actions; thus, the first element is satisfied. The second element is satisfied for reasons the Supreme Court has explained: “[T]he States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). The third element is also satisfied, as the Supreme Court has noted “that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Gilliam, 75 F.3d at 903 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
A ruling in Plaintiff's favor in this case would call into question the validity of the state court criminal proceedings against him and would significantly interfere with those ongoing state proceedings. See Younger, 401 U.S. at 43-45; Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989) (“[F]ederal courts should abstain from the decision of constitutional challenges to state action, however meritorious the complaint may be, ‘whenever [the] federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.'”) (citation omitted); Washington v. Tilton, No. 2:10-cv-997-HFF-RSC, 2010 WL 2084383, at *1 (D.S.C. May 19, 2010). This Court finds that Plaintiff can adequately litigate his federal constitutional rights in the state court proceedings. Thus, this Court should abstain from adjudicating Plaintiff's claims.
Failure to State a Claim
Finally, Plaintiff's Complaint is subject to dismissal because his allegations fail to state a claim for relief. As noted, Plaintiff asserts claims under the Fourth, Fifth, and Fourteenth Amendments related to his arrest for drug and weapon charges. Liberally construing Plaintiff's Complaint, the Court reads it as asserting claims for unlawful search and seizure, false arrest, false imprisonment, and malicious prosecution.
Section 1983 actions premised on claims including false arrest, false imprisonment, and malicious prosecution are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”).
Under § 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. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“The Fourth Amendment is not violated by an arrest based on probable cause.”). Moreover, “an indictment, ‘fair upon its face,' returned by a ‘properly constituted grand jury,' conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also Provet v. S.C., No. 6:07-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (explaining § 1983 claims of false arrest and malicious prosecution were precluded based on the filing of an indictment). This Court, as noted above, has taken judicial notice of Plaintiff's state criminal proceedings. The State has filed grand jury indictments for the three charges Plaintiff complains of in the present action, which remain pending against him in the Spartanburg County Court of General Sessions at case No. 2019A2320500015, 2019A2320500017, and 2019A2320500018. See Spartanburg County Thirteenth Judicial Circuit Public Index, available at https://publicindex.sccourts.org/Spartanburg/ PublicIndex/PISearch.aspx (search by case No. 2019A2320500015, 2019A2320500017, and 2019A2320500018) (last visited Apr. 20, 2021). The indictments act as a bar to Plaintiff's claims for money damages, and his claims are therefore subject to summary dismissal.
Further, to the extent that Plaintiff asserts a constitutional claim for the loss of his property, his claim fails because the Supreme Court has held that deprivations of personal property do not support an action for damages under § 1983. See Baker v. Stevenson, No. 8:13-cv-466-JFA-JDA, 2013 WL 4866337, at *1 (D.S.C. Sept. 11, 2013). “The Due Process Clause of the Fourteenth Amendment . . . does not transform every tort committed by a state actor into a constitutional violation.” DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200-03 (1989). And, the Fourth Circuit Court of Appeals has held that random and unauthorized deprivations of personal property by state officials do not rise to a federal due process violation where the state provides meaningful post-deprivation procedures to secure the return of the property or to compensate for the loss. See Mora v. City of Gaithersburg, 519 F.3d 216, 230-31 (4th Cir. 2008); Bogart v. Chapell, 396 F.3d 548, 561-63 (4th Cir. 2005); Yates v. Jamison, 782 F.2d 1182, 1183-84 (4th Cir. 1986). Thus, Plaintiff's claim for the loss of his personal property fails because he has not alleged a cognizable claim for relief under § 1983.
RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court dismiss this action without issuance and service of process.
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019). Here, Plaintiff's state criminal charges remain pending at this time, and he can raise the issues complained of herein with the state court. Further, dismissal without leave to amend is proper because Defendants are not persons subject to suit under § 1983, and Plaintiff would be unable to allege facts to show that these Defendants are proper Defendants in such an action.
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 300 East Washington Street, Room 239 Greenville, South Carolina 29601
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).