Opinion

Fulmer v. Brown

Court
District Court, D. South Carolina
Filed
May 24, 2021
Cited by
0 cases
Authority
More cited than 29.5%

The opinion

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

BEAUFORT DIVISION

Robert M. Fulmer, Case No.: 9:20-cv-2971-SAL

Plaintiff,

v.

OPINION AND ORDER

Sergeant Brown, Doe 1, Doe 2, Doe 3, and

South Carolina Department of Corrections,

Defendants.

This matter is before the Court for review of the November 18, 2020 Report and

Recommendation of United States Magistrate Judge Molly H. Cherry (the “Report”), made in

accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (D.S.C.). [ECF No. 24]. In the

Report, the Magistrate Judge recommends that Defendants’ motion for summary judgment be

granted. Id. Plaintiff filed timely objections to the Report, ECF No. 26. Defendants did not reply

to Plaintiff’s objections, and the time to do so has passed. Id. For the reasons outlined herein, the

Court adopts the Report in part and declines to adopt the Report in part.

BACKGROUND

In the Report, the Magistrate Judge set forth the background of this action thoroughly. The

Court adopts this background without a recitation except to add a portion of procedural history.

On October 15, 2020, the Magistrate Judge issued an order informing Plaintiff that the summons

for Defendant Sergeant Brown was returned unexecuted. [ECF No. 14]. The Magistrate Judge

stated that Plaintiff should “provide any additional identification or location information he may

have for this Defendant without delay.” Id. The court advised Plaintiff that this Defendant may

be dismissed if he is not served with process. Id. On October 23, 2020, Plaintiff responded to the

order providing some additional information about Defendant Brown. [ECF No. 18]. No further

orders and instructions were issued regarding service of Defendant Brown.

REVIEW OF A MAGISTRATE JUDGE’S REPORT

The Court is charged with making a de novo determination of those portions of the Report to

which specific objections are made, and the Court may accept, reject, or modify, in whole or in

part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge

with instructions. See 28 U.S.C. § 636(b)(1). A district court, however, is only required to conduct

a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection

is made. See id.; Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d

1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report, this Court is

not required to give an explanation for adopting the recommendation. See Camby v. Davis,

718 F.2d 198, 199 (4th Cir. 1983). Thus, the Court must only review those portions of the Report

to which the party has made a specific written objection. Diamond v. Colonial Life & Acc. Ins.

Co., 416 F.3d 310, 316 (4th Cir. 2005).

“An objection is specific if it ‘enables the district judge to focus attention on those issues—

factual and legal—that are at the heart of the parties’ dispute.’” Dunlap v. TM Trucking of the

Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017)

(citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)).

A specific objection to the Magistrate’s Report thus requires more than a reassertion of arguments

from the pleading or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-

00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must “direct

the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano

v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

“Generally stated, nonspecific objections have the same effect as would a failure to object.”

Staley v. Norton, No. 9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing

Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court

reviews portions “not objected to—including those portions to which only ‘general and

conclusory’ objections have been made—for clear error.” Id. (emphasis added) (citing Diamond,

416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47).

DISCUSSION

I. Plaintiff’s objection

Plaintiff objects to the Magistrate Judge’s dismissal of his individual capacity claim against

Defendant Brown. [ECF No. 26]. Plaintiff states that he complied with the court’s order to provide

additional information about Defendant Brown. Id. Accordingly, Plaintiff contends the individual

capacity claim against Defendant Brown should not have been dismissed for failure to effect timely

service. Id. Plaintiff does not make any other objections to the Report. See id. Plaintiff does not

object to the dismissal of his claims against the Doe Defendants. Id. Further, Plaintiff does not

object to the Magistrate Judge’s finding that his official capacity claims and claims against the

South Carolina Department of Corrections should be dismissed because they are barred by the

Eleventh Amendment. Id.

II. The Court adopts the Report as to Plaintiff’s claims against the Doe Defendants,

SCDC, and the official capacity claims.

The Court reviews portions of the Report not objected to for clear error. Diamond, 416 F.3d

at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47. After a thorough review of the Report,

the Court finds no clear error in the portions of the Report concerning Plaintiff’s claims against

the Doe Defendants, SCDC, and Defendants in their official capacities. Accordingly, as to the

claims against the Doe Defendants, SCDC, and Defendants in their official capacities, Defendants’

motion for summary judgment, ECF No. 19, is GRANTED. All claims except for the claims

against Defendant Brown in his individual capacity are DISMISSED.

III. The Court recommits the individual capacity claim against Defendant Brown to the

Magistrate Judge with instructions.

The Court declines to adopt the Report as to the individual capacity claim against Defendant

Brown. Instead, the matter is recommitted to the Magistrate Judge to issue any additional orders

and instructions as are necessary to provide Plaintiff an opportunity to effect service on Defendant

Brown.

CONCLUSION

The Court adopts the Report in part and declines to adopt the Report in part. As to the claims

against the Doe Defendants, SCDC, and Defendants in their official capacities, Defendants’

motion for summary judgment, ECF No. 19, is GRANTED. As for the individual capacity claim

against Defendant Brown, the matter is recommitted to the Magistrate Judge.

IT IS SO ORDERED.

/s/Sherri A. Lydon

May 24, 2021 Sherri A. Lydon

Florence, South Carolina United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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