ELLISON v. PROFFIT

Civil Action No. 4:16-847-BHH.

Michelle Ellison and David Ellison, Plaintiffs, v. Deputy Brian Proffit; John Does; Glen Kirby, and Kenney Boone, Defendants.

United States District Court, D. South Carolina.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights, State Filers
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Michelle Ellison, Plaintiff, represented by Patrick James McLaughlin , Wukela Law Firm.

David Ellison, Plaintiff, represented by Patrick James McLaughlin , Wukela Law Firm.

Deputy Brian Proffit, Defendant, represented by Lisa Arlene Thomas , Thompson and Henry.

Glen Kirby, Defendant, represented by Lisa Arlene Thomas , Thompson and Henry.

Kenney Boone, Defendant, represented by Lisa Arlene Thomas , Thompson and Henry.


ORDER AND OPINION

BRUCE HOWE HENDRICKS, District Judge.

Plaintiffs Michelle Ellison and David Ellison ("Plaintiffs"), through counsel, brought this civil action pursuant to 42 U.S.C § 1983. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina, this matter was referred to United States Magistrate Judge Kaymani D. West for pretrial handling. The matter is now before this Court for review of the Report and Recommendation ("Report") issued by the Magistrate Judge on January 24, 2017. (ECF No. 43.) In her Report, the Magistrate Judge recommends that Defendant's motion to dismiss be granted in part, and denied in part. (Id. at 17.) Specifically, the Magistrate Judge recommends that Plaintiff's claims of malicious prosecution relating to the hindering and resisting charges and § 1983 civil conspiracy should be dismissed. The Magistrate Judge further recommends, however, that at this early stage of the litigation, Defendants' Motion to Dismiss Plaintiffs' claims for § 1983 malicious prosecution as to the breach-of-peace charges and supervisory liability, along with Defendants' assertion of Eleventh-Amendment Immunity, should be denied. (Id.) Objections to the Report were due by February 7, 2017. Neither Defendants nor Plaintiffs have filed objections.

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). 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." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

After a careful review of the record, the applicable law, and the Report of the Magistrate Judge, the Court finds no clear error. Accordingly, the Court ACCEPTS the Magistrate Judge's recommendations and incorporates the Report (ECF No. 43) by specific reference into this Order. It is therefore

ORDERED that Defendant's motion to dismiss (ECF No. 8) is GRANTED as to Plaintiff's claims of malicious prosecution relating to the hindering and resisting charges and § 1983 civil conspiracy, and DENIED as to Plaintiffs' claims for § 1983 malicious prosecution as to the breach-of-peace charges and supervisory liability, along with Defendants' assertion of Eleventh-Amendment Immunity.

IT IS SO ORDERED.


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