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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION Jimmy Duncan ) Civil Action No.: 8:09-1186-MBS-BHH ) Plaintiff, ) ) vs. ) REPORT AND RECOMMENDATION ) OF MAGISTRATE JUDGE Cpl. Robert Cook and Jay ) Lemacks, ) ) Defendants. ) ) ) The Plaintiff brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. This matter is before the Court on the Plaintiff's Motions for Summary Judgment (Dkt. # 52), to Compel (Dkt. # 79), and to be Released (Dkt. # 83); the Defendant Lemack's Summary Judgment Motion (Dkt. #70); and the Defendant Cook's Motion to Dismiss, or, alternatively, for Summary Judgment (Dkt. # 71). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the District Court. The Plaintiff filed this action on April 29, 2009.1 On August 24, 2009, the Plaintiff filed a motion for summary judgment. On September 28, 2009, the Defendant Lemack filed a motion for summary judgment and the Defendant Cook filed a motion to dismiss or, alternatively, for summary judgment. By order filed September 29, 2009, pursuant to

There is not a prison mailroom stamp on the envelope containing the petition. Houston v. Lack, 487 U.S. 266 (1988)(holding document considered filed upon delivery to prison officials for forwarding to court). (Pet. Attach. # 7.) Therefore, the undersigned is using the postmark date as the filing date.

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Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. On November 12, 2009, the Plaintiff filed separate responses opposing the Defendants' motions. FACTS In his complaint, the Plaintiff alleges that on December 12, 2008, he was served with an arrest warrant. (Compl. at 3.) He states that in the warrant, the Defendant Cpl. Robert Cook of the Walterboro Police Department accused the Plaintiff of possession with intent to distribute ("PWID") crack cocaine. Id. The Plaintiff contends that the arrest warrant was issued without probable cause. Id. Specifically, he refers to Cook's affidavit which states that the substance which the Plaintiff possessed was "believed to be crack cocaine." The Plaintiff alleges the substance was never properly identified as cocaine and thus the warrant was issued based upon an assumption. Id. He also alleges that he has reason to believe that the judge's signature was forged because he contends that the issuing judge is blind following cateract surgery. (Compl. at 3.) The Plaintiff also alleges that the jail is without a law library and lacks an adequate grievance system. (Compl. at 4.) He contends that he has filed requests to staff and grievances to several of the defendants and not received any responses.2 The Plaintiff is seeking punitive damages, an injunction, removal of the Defendants from office, and the establishment of a law library and an adequate grievance system. (Compl. at 5.)

The undersigned notes that several defendants have been dismissed from this action by the United States District Court's Order filed September 9, 2009. (Dkt. # 62.) Specifically, the Defendants Chuck Fraser, Harris Beach, David Mathews, B. Ray Woodard, Sean Thorton, and T.K. Alexandra were summarily dismissed. 2

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In his affidavit, the Defendant Cook avers that on December 10, 2008, he responded to a call from someone who claimed to have been threatened by a person with a weapon. (Def. Cook's Mem. Supp. Mot. to Dismiss Ex. A - Cook Aff.) Cook states that he saw the Plaintiff near the scene of the alleged threat and asked the Plaintiff to identify himself which the Plaintiff did. Id. Cook states he then asked the Plaintiff if he could perform a frisk of the Plaintiff to ensure the safety of himself and surrounding officers and the Plaintiff consented. Id. During the pat down, Cook states he found a small bag in the Plaintiff's pocket which contained eleven small tan-colored rocks. Cook avers that, based on his training and experience in law enforcement, he identified the contents of the bag as crack cocaine. Cook then arrested the Plaintiff for PWID crack cocaine and transported him to the Colleton County jail. The next day, Cook sought an arrest warrant and, in his affidavit in support of the warrant, he stated he had probable cause to arrest Plaintiff because he saw Plaintiff with a "small plastic bag containing eleven (11) small tan in color `rocks' believed to be crack cocaine." (Def. Cook's Mem. Supp. Mot. to Dismiss Ex. B Arrest Warrant). Cook alleges that Judge Peter Constantine signed the arrest warrant. APPLICABLE LAW MOTION TO DISMISS STANDARD Pursuant to Rule 12(b)(6) a motion to dismiss may be granted when, construing allegations in light most favorable to plaintiff and assuming facts alleged in the complaint to be true, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In deciding a Rule 12(b)(6) motion, the court can rely only upon the allegations in the complaint and those documents attached as exhibits or incorporated by reference. Simons v. Montgomery County Police Officers, 762 F.2d 30, 31 (4th Cir.1985). 3

While the court must construe factual allegations in the nonmoving party's favor and treat them as true, the court need not treat the complaint's legal conclusions as true. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir.1994); Custer v. Sweeney, 89 F.3d 1156, 1163 (4th Cir.1996) (in 12(b)(6) analysis, court need not accept plaintiff's "unwarranted deductions," "footless conclusions of law," or "sweeping legal conclusions cast in the form of factual allegations") (internal quotations and citations omitted). SUMMARY JUDGMENT STANDARD Rule 56 of the Federal Rule of Civil Procedure states as to a party who has moved for summary judgment: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that (1) there is no genuine issue as to any material fact; and (2) that he is entitled to summary judgment as a matter of law. As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). 4

The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the nonmoving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Rather, the non-moving party must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the petitioner's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). DISCUSSION Initially, the undersigned notes that, in addition to damages, the Plaintiff is seeking to be released from custody. The Plaintiff may not pursue release from custody in an action brought pursuant to

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