Ford v. Cleveland ( 2022 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION Deshawn Ford, ) Case No. 5:22-cv-00650-DCC ) Plaintiff, ) ) v. ) ORDER ) Officer Cleveland, Officer Delk, ) Lieutenant Parker, Lieutenant Cook, ) Lieutenant Levels, Officer Duffy, ) ) Defendants. ) ________________________________ ) This matter is before the Court on Plaintiff’s Complaint alleging claims pursuant to 42 U.S.C. § 1983. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was referred to United States Magistrate Judge Kaymani D. West for pre-trial proceedings and a Report and Recommendation (“Report”). On July 11, 2022, the Magistrate Judge issued a Report recommending that Defendants Lieutenant Cook and Lieutenant Parker be dismissed from this action without prejudice and without issuance of service of process pursuant to Federal Rule of Civil Procedure 4(m).1 ECF No. 33. The Magistrate Judge advised Plaintiff of the procedures and 1 The Court notes that counsel filed an answer ostensibly on behalf of all Defendants. ECF No. 24. However, within the answer, counsel stated that “Defendants Lieutenant Cook and Lieutenant Parker have not been served with the Summons and Complaint and, therefore, the Court lacks in personum jurisdiction over those two defendants and they should be dismissed from the action with prejudice.” requirements for filing objections to the Report and the serious consequences if he failed to do so. Plaintiff has not filed objections and the time in which to do so has lapsed. 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 will review 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)). After considering the record in this case, the applicable law, and the Report of the Magistrate Judge, the Court finds no clear error and agrees with the recommendation of the Magistrate Judge. Accordingly, Defendants Lieutenant Cook and Lieutenant Parker are DISMISSED without prejudice and without issuance of service of process. IT IS SO ORDERED. s/ Donald C. Coggins, Jr. United States District Judge August 30, 2022 Spartanburg, South Carolina