Opinion

Brown v. Ray

Court
District Court, D. South Carolina
Filed
Jun 29, 2021
Cited by
0 cases
Authority
More cited than 29.5%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Demetrius Alexander Brown, )

)

Plaintiff, ) Case No. 4:21-cv-1234-TMC

)

vs. )

) ORDER

)

Director Ray; Sgt. Mike Alston; )

and Linda McCreary, )

)

Defendants. )

)

Plaintiff Demetrius Alexander Brown, a state pretrial detainee proceeding pro

se, brought this action under 42 U.S.C. § 1983 (ECF No. 1) and was permitted to

proceed in forma pauperis under 28 U.S.C. §§ 1915 and 1915A (ECF Nos. 2; 8).

Plaintiff alleges that Defendants abridged his rights under the Fourth, Eighth and

Fourteenth Amendments by searching his cell without a warrant, performing a strip

search, and seizing his personal, medically-necessary shoes. (ECF No. 1 at 4–6).

The case was referred to a magistrate judge for all pretrial proceedings pursuant to

28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.). After an initial

review, the magistrate judge issued an order advising Plaintiff that his action was

subject to partial summary dismissal to the extent he claimed he was subjected to an

unconstitutional strip search and cell search. (ECF No. 7 at 1–2). The magistrate

judge concluded that, with respect to those allegations, the complaint “failed to state

a claim upon which relief can be granted” as “[p]ersons lawfully arrested on probable

cause and detained lose [the] right of privacy from routine searches of cavities of

their bodies and their jail cells as do convicted felons.” Id. at 1–2 (citing Jones v.

Murray, 962 F.2d 302, 306 (4th Cir. 1992)). The magistrate judge granted Plaintiff

twenty-one days from the date of the order, plus three days to allow for mailing, to

file an amended complaint correcting the deficiencies. Id. at 2. The order warned

Plaintiff that the failure to do so would result in a recommendation for summary

dismissal of these claims. Id. at 2.

On May 13, 2021, Plaintiff filed an amended complaint. (ECF No. 10). The

allegations were generally the same as those asserted in the original complaint, and

Plaintiff continued to assert that Defendant Alston conducted an unconstitutional

body cavity search which amounted to a “verbal[] sexual[] assault[].” Id. at 8–9.

The amended complaint dropped Detective Charles Scott Bonner as a defendant in

the action but added Linda McCreary as a defendant. Id. at 1. The amended

complaint also added new allegations that Defendants had unlawfully interfered with

mail from Plaintiff’s attorney and from his family. Id. at 16–17.

On May 17, 2021, the magistrate judge issued a Report and Recommendation

(the “Report”) (ECF No. 17) setting forth the following findings and conclusions:

Plaintiff availed himself of the opportunity and filed an

Amended Complaint; however, some deficiencies persist

and the action is subject to partial summary dismissal.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983.

Plaintiff alleges his claims are under the First, Fourth,

Eighth, and Fourteenth Amendments and that his due

process and equal protection rights have been violated.

Plaintiff alleges Defendant Ray did not allow him personal

property shoes that had been approved by medical due to

problems with neuropathy in his legs and feet. Plaintiff

alleges at Plaintiff’s attorney’s prompting, Plaintiff

requested evidence from his mother for his criminal

defense. The evidence was time stamped screen shots of

text messages and some legal case law. Plaintiff believed

his mail was being hindered by McCreary and had his

mother send the same exact mailing to both him and

another inmate to see if they would both receive it. The

other inmate received the package in his possession, but

Plaintiff’s mother received a return to sender as to

Plaintiff’s same package. Plaintiff alleges the evidence is

pertinent to his defense and the timeline of alleged events

in his criminal action. Plaintiff asserts the same package

was received by another inmate and was not a threat, was

pertaining to his case, not illegal or vulgar, and the denial

of access was purposeful because another similarly

situated inmate received the same exact content from the

same sender.

Id. at 2–3 (internal docket citations omitted). The magistrate judge concluded,

pursuant to his § 1915(e) review, that the foregoing allegations were sufficient to

withstand summary dismissal as to Defendants Ray and McCreary at this point in

the litigation. Id. at 2.

With respect to Plaintiff’s assertion that “Defendant Alston verbally sexually

assaulted him during a strip search,” the magistrate judge concluded that Plaintiff

“failed to state a claim upon which relief can be granted” because “[p]ersons lawfully

arrested on probable cause and detained lose [the] right of privacy from routine

searches of cavities of their bodies and their jail cells as do convicted felons.” Id. at

3. Additionally, the magistrate judge noted that “verbal threats do not arise to a

claim of constitutional magnitude.” Id. at 4.  Therefore, the magistrate judge

recommended the court summarily dismiss Plaintiff’s claims against Defendant

Alston with prejudice and without issuance and service of process. Id. The Report

advised Plaintiff of his right to file specific written objections to the magistrate’s

ruling and recommendation and of the consequences of failing to do so. Id. at 5. On

May 17, 2021, the Report was sent via United States mail to Plaintiff at the address

he has provided the court. (ECF No. 18). The Report has not been returned as

undeliverable. To date, neither party has filed objections to the Report and the time

for doing so has now passed.

The magistrate judge’s recommendation has no presumptive weight, and the

responsibility for making a final determination remains with the United States

District Court. Wimmer v. Cook, 774 F.2d 68, 72 (4th Cir. 1985) (quoting Mathews

v. Weber, 423 U.S. 261, 270–71 (1976)). Nevertheless, “[t]he district court is only

required to review de novo those portions of the report to which specific objections

have been made, and need not conduct de novo review ‘when a party makes general

and conclusory objections that do not direct the court to a specific error in the

magistrate judge’s proposed findings and recommendations.’” Farmer v. McBride,

177 Fed. App’x 327, 330–31 (4th Cir. April 26, 2006) (quoting Orpiano v. Johnson,

687 F.2d 44, 47 (4th Cir. 1982)). The court may accept, reject, or modify, in whole

or in part, the recommendation made by the magistrate judge or recommit the matter

with instructions. 28 U.S.C. § 636(b)(1). However, in the absence of specific

objections to the Report and Recommendation, this Court is not required to give any

explanation for adopting the recommendation. Greenspan v. Brothers Prop. Corp.,

103 F. Supp. 3d 734, 737 (D.S.C. 2015) (citing Camby v. Davis, 718 F.2d 198, 199–

200 (4th Cir. 1983)).

Having reviewed the Report and finding no clear error, the court agrees with,

and wholly adopts, the magistrate judge’s conclusions and recommendations in the

Report (ECF No. 17), which are incorporated herein by reference. Therefore, the

claims set forth in the amended complaint (ECF No. 10) against Defendant Alston

are DISMISSED with prejudice and without issuance and service of process.1

IT IS SO ORDERED.

s/Timothy M. Cain

United States District Judge

Anderson, South Carolina

June 29, 2021

1 Plaintiff’s claims against Defendants Ray and McCreary remain pending, and the magistrate

judge has issued an order authorizing service of process as to Defendants Ray and McCreary. (ECF

No. 16).

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified of the right to appeal this order pursuant to Rules 3

and 4 of the Federal Rules of Appellate Procedure.

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.