Foust v. Walker et al, No. 5:2015cv03445 - Document 45 (D.S.C. 2016)

Court Description: ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 40 Report and Recommendation, denying 18 Motion to Strike, denying 17 Motion to Dismiss. This matter is REMANDED to the Magistrate Judge for further pretrial handling. Signed by Honorable J Michelle Childs on 8/10/2016. (asni, )

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Foust v. Walker et al Doc. 45 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION Othella Foust, f/k/a Othella Grant, ) ) Plaintiff, ) ) v. ) ) Latisha Walker; City of Orangeburg; Ronda ) Bamberg; Orangeburg County Sheriff’s ) Department; and Orangeburg County, ) ) Defendants. ) ____________________________________) Civil Action No.: 5:15-cv-03445-JMC ORDER AND OPINION Plaintiff Othella Foust (“Plaintiff”) originally filed this action in the Court of Common Pleas for Orangeburg County, South Carolina. (ECF No. 1-1.) The defendants removed the action to this court on April 6, 2015. (ECF No. 1.) Subsequently, Plaintiff filed an amended complaint alleging a cause of action pursuant to 42 U.S.C. § 1983. (ECF No. 13.) In the amended complaint, Plaintiff named the following parties as defendants: Latisha Walker (“Walker”); City of Orangeburg (“the City”); Ronda Bamberg (“Bamberg”); Orangeburg County Sheriff’s Department (“OCSD”); and Orangeburg County (“the County”) (collectively, “Defendants”). Specifically, Plaintiff alleges that in October 2013, Plaintiff reported to the City that Walker had interfered in a domestic matter by improperly accepting service of process on behalf of Plaintiff’s husband. (ECF No. 40 at 2.) Plaintiff alleges that the City informed Walker of Plaintiff’s report and that Walker retaliated by filing a false police report with the OCSD. (Id.) As a result of Walker’s police report, Plaintiff alleges that she was arrested. (Id.) Plaintiff asserts additional claims of malicious prosecution, negligence, false imprisonment, civil conspiracy, intentional infliction of emotional distress, and abuse of process against Defendants. (ECF No. 13.) Plaintiff seeks compensatory and punitive damages, as well as attorney’s fees where allowed by law. (ECF No. 13 at 9). 1 Dockets.Justia.com This matter is before the court on Walker and the City’s Motion to Dismiss (ECF No. 17) and the City’s motion to strike portions of the complaint (ECF No. 18). Plaintiff filed responses in opposition to the motions. (ECF Nos. 23, 24.) In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, D.S.C., the matter was referred to United States Magistrate Judge Shiva Hodges for a Report and Recommendation. On June 17, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court deny the Motion to Dismiss and the City’s motion to strike portions of the complaint. (ECF No. 40). The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a recitation. The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. recommendation to this court. The Magistrate Judge makes only a The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636 (b)(1). Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n 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, 316 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). The parties were advised of their right to file objections to the Report. (ECF No. 40 at 6). The parties were required to file objections by July 5, 2016. To date, no objections to the Report 2 have been filed. Accordingly, this court has reviewed the Report of the Magistrate Judge and does not find clear error. After a thorough review of the Report and the record in this case, the court finds the Report provides an accurate summary of the facts and law. The court ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 40). Accordingly, Walker and the City’s Motion to Dismiss (ECF No. 17) is DENIED. Further, the City’s Motion to Strike (ECF No. 18) is also DENIED. This matter is REMANDED to the Magistrate Judge for further pretrial handling. IT IS SO ORDERED. United States District Judge August 10, 2016 Columbia, South Carolina 3

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