United States District Court, E.D. North Carolina, Western Division
C. DEVER III, CHIEF UNITED STATES DISTRICT JUDGE
November 30, 2016, Kenneth Gibson ("Gibson"), a
state inmate proceeding pro se and in forma pauperis [D.E. 6,
12], filed this action under 42 U.S.C. § 1983 [D.E. 1],
along with supporting exhibits [DE 1-1]. On December 9, 2016,
Gibson refiled his complaint on the form prescribed for use
in this court [D.E.5]. Gibson seeks injunctive relief only.
Id. at 9. Gibson also moved for discovery and
injunctive relief and to supplement his complaint [D.E. 4]
and to amend his complaint [D.E. 9].
August 9, 2017, Magistrate Judge Numbers issued an Order and
Memorandum and Recommendation ("M&R") [D.E. 14]
and allowed two of Gibson's individual-capacity claims to
proceed-the First Amendment retaliation claim against Dr. Obi
Umessifand the Eighth Amendment excessive-force claim against
Sgt. Elderdize. Judge Numbers recommends that the court (1)
dismiss without prejudice Gibson's Eighth Amendment
claims of deliberate indifference to serious medical needs
and to conditions of confinement against Dr. Ramsey, Dr.
Smith-Hunter, Dr. Duvall, Nurse Rowley, and Angelo Wiggins in
their individual and official capacities; (2) dismiss with
prejudice the Fourteenth Amendment due-process challenges to
disciplinary proceedings and grievance processes; (3) dismiss
without prejudice the claim under Title II of the Americans
with Disabilities Act of 1999 ("ADA"); (4) dismiss
with prejudice the claim under Title m of the ADA; (5)
dismiss with prejudice all claims against the State of North
Carolina, Central Prison, and Nash Correctional Institution
with the exception of a Title II ADA claim; and (6) dismiss
with prejudice all claims against the unnamed "Central
and Nash Officials." Judge Numbers denied Gibson's
motion for discovery and injunctive relief and allowed
Gibson's motions to supplement and amend. On September 8,
2017, Gibson objected to the M&R [D.E. 18], requested
leave to amend his complaint, and challenged the denial of
his motion to compel discovery.
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Tns. Co., 416 F.3d
310.315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b).
The court does not perform a de novo review where a party
makes only "general and conclusory objections that do
not direct the court to a specific error in the
magistrate's proposed findings and recommendations."
Orpiano v. Johnson. 687 F.2d 44, 47 (4th Cir. 1982).
Absent specific objections, the court reviews only for
"clear error" and need not give any explanation for
adopting the M&R. See Diamond, 416 F.3d at 315
(citing Fed.R.Civ.P. 72 advisory committee's note);
Cambv v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
Upon careful review of the record, "the court may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1).
objections merely summarize the allegations in his first
amended complaint. See Obj. [D.E. 18]. Gibson fails to
identify any purported error in the M&R. Instead, Gibson
argues in conclusory fashion that "none of [his] case
should be dismissed." Id. at 2. Thus,
Gibson's objection lacks the requisite specificity to
trigger de novo review. See Diamond. 416 F.3d at
315-16. After a careful review of the record, the M&R,
and the objections, the court finds no clear error on the
face of the record. Alternatively, even if de novo review is
required, the court overrules the objections as baseless.
seeks leave to add the North Carolina Department of Public
Safety ("DPS") as a defendant. The State of North
Carolina is not a proper defendant under section 1983. See
M&R [D.E. 14] 6; Kentucky v. Graham, 473 U.S.
159, 171 (1985). This principle also applies to DPS. See,
e.g., Regents of the Univ. of Cal. v. Doe, 519 U.S.
425.430 (1997): Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66 (1989); Clark v. Md.
Dep't of Pub. Safety & Corr. Servs., 316
F.App'x 279, 282 (4th Cir. 2009) (per curiam)
(unpublished). Accordingly, the court denies Gibson's
motion to amend his complaint to add DPS.
Gibson challenges the denial of his motion to compel
discovery. Defendants have not been served with the complaint
to date, the court has not entered not been entered a
scheduling order. Thus, any discovery requests are premature.
the court GRANTS Gibson's motion to amend his complaint
[D.E. 4] to add Dr. Duvall as a defendant, DENIES
Gibson's request to amend bis complaint to add DPS as a
defendant [D.E. 9], and OVERRULES his objections [D.E. 18] to
the M&R. Except as modified herein, the court ADOPTS the
findings and conclusions in the Order and M&R [D.E. 14].
The court ORDERS as follows:
1. Gibsons's motion to amend his complaint to add Dr.
Duvall [D.E. 4] is GRANTED;
2. Gibson may proceed with his First Amendment retaliation
claim against Umessi in his individual capacity and his
Eighth Amendment excessive-force claim against Elderdize in
his individual capacity;
3. Gibson's Eighth Amendment claims against Ramsey,
Smith-Hunter, Duvall, Rowley, and Wiggins in their individual
and official capacities are DISMISSED without prejudice;
4. Gibson's Fourteenth Amendment due-process claims are
DISMISSED with prejudice;
5. Gibson's Title II ADA claim against North Carolina,
Central Prison, and Nash Correctional Institution is