Daly v. Zobel, 041408 FED4, 07-1653

Docket Nº:07-1653
Party Name:THOMAS P. DALY, Plaintiff - Appellant, v. TRUDY ZOBEL; DAVID HINSON; JOHN RODRIGUEZ, Officer; CAPTAIN DONOGHUE, Defendants -Appellees.
Case Date:April 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

THOMAS P. DALY, Plaintiff - Appellant,



No. 07-1653

United States Court of Appeals, Fourth Circuit

April 14, 2008


Submitted: March 31, 2008.

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:06-cv-01733-DCN)

Chalmers C. Johnson, CHALMERS JOHNSON LAW FIRM, LLC, Mt. Pleasant, South Carolina, for Appellant.

Alice F. Paylor, ROSEN, ROSEN & HAGOOD, LLC, Charleston, South Carolina; David Leon Morrison, Michael B. Wren, DAVIDSON, MORRISON & LINDEMANN, PA, Columbia, South Carolina, for Appellees.

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.


Thomas Daly appeals from the district court's order dismissing his claims arising out of his arrest and prosecution following an incident at his daughter's elementary school. The charges were ultimately dismissed and Daly filed, in state court, a complaint asserting a state law claim for malicious prosecution and a federal claim pursuant to 42 U.S.C. § 1983 (2000). He later amended the complaint to ostensibly remove the § 1983 claim but left two references to that statute in the amended complaint. The Defendants removed the action to federal court based on federal question jurisdiction, 28 U.S.C. § 1331 (2000), and moved to dismiss. Daly then filed a motion to amend the complaint based on "typographical errors" but did not identify those errors, nor did Daly seek a remand to state court. Along with the motion to amend, Daly's attorney included a proposed amended complaint that mirrored the amended complaint filed in state court, except that it makes no reference to § 1983.

The Defendants moved for summary judgment, arguing that Daly's allegations failed to state a claim either under state law or § 1983. In response, Daly stated that he had withdrawn the § 1983 claim, but then went on to address the merits of that claim. The district court treated Daly's motion to amend the complaint as a motion to voluntarily dismiss his § 1983 claim, and granted the motion. The court then exercised its supplemental jurisdiction and concluded that the remaining state claims failed on the merits. Daly...

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