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.