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Davis v. Bantz

United States District Court, D. South Carolina, Columbia Division

April 30, 2015

Keith A. Davis, Plaintiff,
v.
Russel Bantz, Donald Hicks, Jennifer H. Mckellar, Cpl. Hayhurst, A. Derrick, Jason Williams, Lt. Robinson, Cameron Littlejohn, Jr., Sheriff Leon Lott, Richland County Sheriff Department, Richland County Solicitors Office, J.D. Rowell, Defendants.

ORDER AND OPINION

J. MICHELLE CHILDS, District Judge.

Plaintiff Keith A. Davis ("Plaintiff") filed this pro se action alleging a conspiracy to violate Plaintiff's Fourth, Fifth, Sixth, and Fourteenth Amendment rights by Defendants Russel Bantz, Donald Hicks, Jennifer H. Mckellar, Cpl. Hayhurst, A. Derrick, Jason Williams, Lt. Robinson, Cameron Littlejohn, Jr., Sheriff Leon Lott, Richland County Sheriff Department, Richland County Solicitors Office, and J.D. Rowell (collectively "Defendants"). (ECF No. 1.)

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial handling. On October 15, 2014, the Magistrate Judge issued a Report and Recommendation ("Report") recommending the court summarily dismiss the Complaint without prejudice. (ECF No. 9.) This review considers Plaintiff's Objections to Findings and Recommendation of Magistrate Judge ("Objections"), filed November 3, 2014 (ECF No. 14); Motion for Reconsideration and for Leave to Amend Complaint, filed December 1, 2014 (ECF No. 19); Motion for Sanctioning Bad Faith Report and Recommendation, filed December 1, 2014 (ECF No. 20); and Motion for Return of Property and Suppression of Evidence, filed December 23, 2014 (ECF No. 22). For the reasons set forth herein, the court ACCEPTS the Magistrate Judge's Report. The court thereby GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Reconsideration and for Leave to Amend Complaint (ECF No. 19), DENIES Plaintiff's Motion for Sanctioning Bad Faith Report and Recommendation (ECF No. 20) and Motion for Return of Property and Suppression of Evidence (ECF No. 22) and DISMISSES this action (ECF No. 1) without prejudice.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The court concludes upon its own careful review of the record that the factual and procedural summation in the Magistrate Judge's Report is accurate, and the court adopts this summary as its own. ( See ECF No. 9.) The court will only recite herein facts pertinent to the analysis of Plaintiff's Objections and Motions.

On September 22, 2014, Plaintiff filed a Complaint, in concert with a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed on September 23, 2013, with United States District Judge Margaret B. Seymour, alleging a conspiracy by multiple state and federal officials to violate Plaintiff's Fourth, Fifth, Sixth, and Fourteenth Amendment rights. (ECF No. 1; see also United States v. Davis, Criminal Action No. 3:11-cr-00512-MBS, ECF No. 139.) Plaintiff alleges Defendant Bantz, a Lexington County Sheriff's Deputy, initiated a traffic stop based on an allegedly false accusation of running a red light and proceeded to unconstitutionally search Plaintiff's vehicle. (ECF No. 1 at 4.) Defendant Mckellar, an assistant state solicitor, sent Plaintiff a notice to appear in court, which Plaintiff alleges was sent to the incorrect address and resulted in the issuance of a bench warrant. ( Id. at 5-6.) Due to that bench warrant, Plaintiff alleges, Defendants Hayhurst and Derrick, under the approval of Defendant Williams, arrested Plaintiff and searched his motel room, seizing $1, 946 and drugs. ( Id. at 6.) Plaintiff further alleges that Defendant Robinson, of the Richland County Sheriff Department, and Defendant Rowell, Assistant United States Attorney, collaborated to bring a federal indictment against Plaintiff "on the unlawfully obtained evidence which stemmed from the March 12, 2008 traffic stop and the unlawfully executed bench warrant which led to the search of my motel room." ( Id. at 7.) Plaintiff also alleges that prosecutors and Defendant Bantz misrepresented evidence in an evidentiary hearing regarding probable cause for the traffic stop. ( Id. at 10.) Finally, Plaintiff alleges his federal public defender, Defendant Littlejohn, induced him to plead guilty, even though Plaintiff did not want to. ( Id. at 11.) Plaintiff seeks a declaratory judgment, injunctive relief, and monetary damages. ( Id. at 13.)

On October 15, 2014, the Magistrate Judge issued the Report, recommending the Complaint be dismissed without prejudice and without issuance and service of process. (ECF No. 9.) In the Report, the Magistrate Judge found that Plaintiff's Fourth Amendment claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). ( Id. at 5.) Heck states that a prisoner has no cognizable claim under 42 U.S.C. § 1983 if a favorable result would question the validity of the conviction, unless the prisoner can demonstrate the conviction has been invalidated. 512 U.S. at 487. Regarding Plaintiff's conspiracy allegations, the Magistrate Judge found, "Plaintiff provides no concrete facts to demonstrate that the defendants came to a mutual understanding, or acted jointly in concert' to deprive Plaintiff of any constitutional right." (ECF No. 9 at 6.) The Magistrate Judge also noted that "prosecutors have absolute immunity for activities in or connected with judicial proceedings" and therefore claims against Defendants Mckellar, the Richland County Solicitors Office, and Rowell are barred from suit. ( Id. at 6-7 (citing Buckley v. Fitzsimmons, 509 U.S. 259 (1993).) Regarding Defendant Littlejohn, the Magistrate Judge found "an attorney, whether retained or appointed, does not act under color of state or federal law when performing traditional functions as counsel" and thus Plaintiff's constitutional claims against Defendant Littlejohn are subject to dismissal. ( Id. at 7.) The Magistrate Judge further found that Defendants Lott and Richland County Sheriff Department are considered agents of the state and actions against them are barred by the Eleventh Amendment. ( Id. at 7-8.) Finally, the Magistrate Judge recommended the court decline to exercise supplemental jurisdiction over any state law claims. ( Id. at 8.)

On November 4, 2014, having received no objections from Plaintiff by the November 3 deadline, the court filed an Order accepting the Report and dismissing the Complaint. (ECF No. 11.) Plaintiff subsequently filed his Objections on November 6, 2014. Under Houston v. Lack, a prisoner's document is considered filed at the time the prisoner delivers it to prison authorities for forwarding to the court clerk. 487 U.S. 266, 270 (1988). The envelope containing Plaintiff's Objections was stamped as received by the prison mailroom on November 3, 2014, the date of the deadline, and therefore the Objections were timely filed. ( See ECF No 14-1 at 1.) On December 1, 2014, the court issued a text order vacating the November 4 Order. (ECF No. 16.)

Also on December 1, 2014, Plaintiff filed his Motion for Reconsideration and for Leave to Amend Complaint (ECF No. 19) and Motion for Sanctioning Bad Faith Report and Recommendation (ECF No. 20). Plaintiff filed his Motion for Return of Property and Suppression of Evidence on December 23, 2014. (ECF No. 22.)

Judge Seymour granted summary judgment for the Government, denying and dismissing Plaintiff's § 2255 Motion with prejudice, on March 27, 2015.[1] United States v. Davis, Criminal Action No. 3:11-cr-00512-MBS, ECF No. 165.

II. LEGAL STANDARD AND ANALYSIS

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. The Magistrate Judge makes only a recommendation to this court. 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). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

A. Motion to Reconsider and Leave to Amend

Plaintiff first moves the court to reconsider its ruling in the November 4 Order (ECF No. 11) accepting the Magistrate Judge's Report. (ECF No. 19.) In light of Plaintiff's timely filed Objections, received after the Order was filed, and in light of the December 1 Text Order vacating the judgment, the court grants this ...


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