Gallipeau v. Mitchell et al
Filing
51
ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 47 Report and Recommendations, granting in part 39 Motion to Dismiss as to plaintiff's Bivens claim against the FBI and Agent Mitchell in his official capacity, denying 39 Motion to Dismiss as to the claim against Mitchell in his individual capacity, granting in part 49 Motion to Stay, staying the action until the conclusion of the underlying criminal case. Signed by Honorable Joseph F Anderson, Jr on 03/04/09. (bshr, )
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U N I T E D STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION D e n n is Gallipeau, ) ) P l a in tif f , ) ) v. ) ) B yro n Mitchell, Special Agent for the ) F B I, and the Federal Bureau of ) In v e stig a tio n Columbia SC Office, ) ) D e f e n d a n ts . ) ________________________________ ) C /A No.: 3:07-3522-JFA-JRM
ORDER
T h is matter is before the court for review of the Magistrate Judge's report and re c o m m e n d a tio n ("Report") made in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 7 3 .0 2 (B )(2 )(e) (D.S.C.). T h e magistrate judge makes only a recommendation to the Court, to which any p a rty may file written objections . . . . The Court is not bound by the re c o m m e n d a tio n of the magistrate judge but, instead, retains responsibility for t h e final determination. The Court is required to make a de novo d e te rm in a tio n of those portions of the report or specified findings or re c o m m e n d a tio n as to which an objection is made. However, the Court is not re q u ire d to review, under a de novo or any other standard, the factual or legal c o n c lu s io n s of the magistrate judge as to those portions of the report and re c o m m e n d a tio n to which no objections are addressed. While the level of s c ru tin y entailed by the Court's review of the Report thus depends on whether o r not objections have been filed, in either case the Court is free, after review, t o accept, reject, or modify any of the magistrate judge's findings or r e c o m m e n d a tio n s .
1
W a lla c e v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citatio n s omitted). P la in tif f is a pretrial detainee awaiting trial on two counts of violating statutes c rim in a lizin g the transportation of child pornography and attempting to coerce a minor to en g ag e in sexual activity in violation of 18 U.S.C. §§ 2252A(a)(1), 2253, and 2422(b). U n ite d States v. Gallipeau, Cr. No. 3:08-96. On March 3, 2008, plaintiff filed an Amended C o m p la in t against the FBI and Agent Byron Mitchell, claiming that Agent Mitchell violated h is constitutional rights in seizing his computer during the investigation that led to the u n d e rlyin g criminal charges. Plaintiff seeks compensatory and punitive damages, together w ith the return of his computer. T h e matter now comes before the court on defendants' motion to dismiss [dkt. #39]. T h e Magistrate Judge filed a detailed and comprehensive Report on February 4, 2009 [dkt. # 4 7 ], recommending that defendant's motion to dismiss be granted as to plaintiff's Bivens c laim against the FBI and Agent Mitchell in his official capacity, and denied as to the claim ag ains t Agent Mitchell in his individual capacity. The Report also recommends that the court s ta y this action pending resolution of the underlying criminal charges. Defendants subsequently filed a motion to stay this action pending resolution of the u n d e rlyin g criminal charges [dkt. # 49]. Defendants further request a extension of time to o b je c t to the Report in order to use the record from the ongoing criminal case in resolving th is civil matter.
2
In light of the standard set out above, the court has reviewed the record, the applicable law , the Report of the Magistrate Judge, together with defendants' motion to stay. The court f in d s the Magistrate Judge's recommendation fairly and accurately summarizes the facts and a p p lie s the correct principles of law. The court, therefore, adopts the recommendation of the M a g i str a te Judge in full and incorporates his Report by specific reference. Defendants' m o tio n to dismiss is granted as to plaintiff's Bivens claim against the FBI and Agent Mitchell in his official capacity, and denied as to the claim against Agent Mitchell in his individual c a p a c i t y. The court reserves the right to reconsider the defendants' arguments after
c o n c lu s i o n of the underlying criminal case. The court grants defendants' motion to stay f u rth e r proceedings in this case until conclusion of the underlying criminal case. IT IS SO ORDERED.
March 4, 2009 C o lu m b ia , South Carolina
s / Joseph F. Anderson, Jr. U n ite d States District Judge
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