stating that “in 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.”
How later courts described this case
- stating that “in 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.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Thurmond Guess Sr., Civil Action No. 3:23-2957-CMC
Plaintiff,
vs.
ORDER
Leonardo Brown As Richland County
Administrator; Darrell Jackson, Sr.; Rose
Ann English; Alfred T. Guess; and Marjorie
Guess,
Defendants.
This matter is before the court on review of Plaintiffs’ pro se Amended Complaint. ECF
No. 25. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings
and a Report and Recommendation (“Report”).
Previously, the Magistrate Judge entered a Report recommending Plaintiff’s original
Complaint be summarily dismissed. ECF No. 12. Plaintiff objected, insisting he could amend to
allege a federal claim. ECF No. 15. Accordingly, the court declined to adopt the Report and
allowed Plaintiff an opportunity to amend. ECF No. 17. Plaintiff filed his Amended Complaint.
ECF No. 25.1
1 The Amended Complaint was submitted September 8, 2023. However, it was inadvertently not
filed on the docket at that time. This court therefore dismissed the case, believing Plaintiff did not
wish to pursue an Amended Complaint. ECF No. 19. Plaintiff then filed a motion for
reconsideration, attaching his clocked-in copy of the Amended Complaint. ECF No. 22. This court
accordingly reopened the case and directed the Amended Complaint be filed on the docket as of
the day it was clocked-in. ECF No. 24. This Report follows.
On November 8, 2023, the Magistrate Judge issued a second Report recommending the
Amended Complaint be summarily dismissed without prejudice and without issuance and service
of process. ECF No. 28. The Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the serious consequences if he failed to do so.
Plaintiff filed objections on November 13, 2023. ECF No. 31.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection
is made. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in 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.”) (citation omitted).
The Report recommends dismissal of the criminal conspiracy claim because it was brought
under a criminal statute; of the § 1983 constitutional claims against the private citizens (all
Defendants except Brown); and against Brown because the easement was filed before Brown was
County Administrator and Plaintiff’s allegations regarding a meeting in 2022 were insufficient to
show Brown violated his rights. ECF No. 28.
2
In his objections, Plaintiff alleges he has sufficiently pleaded the elements of an action
under 42 U.S.C. § 1983 and a Monell claim. ECF No. 31 at 2. He also contends “some of these
laws are criminal but still civil action can be filed.” Id. Plaintiff apparently warned Brown he was
“acting under color of state law” and violating the constitution, but Brown stated in a letter he was
not going to give the property back. Id. Plaintiff attaches a letter signed by Brown noting the
easement Plaintiff disputes has been in effect for over 30 years, and the time for contesting the
signatures was within two years of execution. ECF No. 31-1.
The court agrees with the Magistrate Judge the Amended Complaint does not set forth a
viable federal claim under § 1983 or the other criminal statutes under which Plaintiff attempts to
bring claims. Plaintiff’s objections are overruled for the reasons stated in the Report: he may not
bring a civil action under a criminal statute, Defendants other than Brown are not state actors, and
he fails to state a claim against Brown under § 1983. Claims under Monell are restricted to
municipalities and not a single actor. After reviewing the record of this matter, the applicable law,
the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections, the court
adopts and incorporates the Report and Recommendation by reference in this Order. Plaintiff’s
Amended Complaint is hereby summarily dismissed without prejudice and without issuance and
service of process.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
November 16, 2023
3