United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Demetrius Jarod Smalls ("Plaintiff"), proceeding
pro se and in forma pauperis, brings this
action against various prosecutors, attorneys, and judges
("Defendants"). ECF No. 1. Specifically, Plaintiff
charges, in what he calls a "Criminal Complaint, "
that Defendants committed numerous "criminal offenses,
" including kidnapping, conspiracy to kidnap,
obstruction of justice, perjury, conspiracy, conspiracy
against rights, extortion, fraud and false statements,
depriving person of civil right, and barratry. Id.
at 1. Plaintiff brings this action under Fed. R. Crim. P. 3,
but the court will also consider his claims under 42 U.S.C. §
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02, D.S.C., this matter was referred to United States
Magistrate Judge Mary Gordon Baker for a Report and
Recommendation. The Magistrate Judge filed a Report and
Recommendation on November 10, 2015, recommending that
Plaintiff's Complaint be summarily dismissed with
prejudice. ECF No. 12. Plaintiff filed objections to the
Report on December 4, 2015. ECF No. 15.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court is charged with making a de novo
review of any portions of the Report and Recommendation to
which a specific objection is made. Id. The district
court need not conduct a de novo review when a party
makes only general and conclusory objections that do not
direct the court to a specific error in the Magistrate
Judge's proposed findings and recommendations.
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.
1982). The court may accept, reject, or modify, in whole or
in part, the recommendation made by the Magistrate Judge. 28
U.S.C. § 636(b)(1).
has filed only a general objection to the Report and
Recommendation, arguing that the Magistrate Judge should have
characterized Plaintiff's Complaint as a criminal matter
rather than a civil one. Nevertheless, the court has
conducted a de novo review of the issues in this
case and concludes that the Magistrate Judge has properly
applied the applicable law.
Magistrate Judge first analyzed whether Fed. R. Crim. P. 3
provides authority under which Plaintiff may file his
Criminal Complaint and "have arrest warrants issued upon
probable cause." See ECF No. 1 at 1. Citing
separation of powers doctrine, the Magistrate Judge
determined that only a prosecutor may determine whether to
file a criminal complaint. ECF No. 12 at 7-8 (citing
State v. Thrift, 440 S.E.2d 341 (S.C. 1994)).
Additionally, the judges and prosecutors, whom Plaintiff
seeks to have arrested, enjoy absolute immunity from such
claims. See Buckley v. Fitzsimmons, 509
U.S. 259, 272-73 (1993) (prosecutorial immunity); Mireles
v. Waco, 502 U.S. 9, 12 (1991) (judicial immunity).
Thus, the Magistrate Judge properly concluded that Plaintiff
had no authority under Fed. R. Crim. P. 3 to file a Criminal
the Magistrate Judge considered the merits of Plaintiff's
Complaint as if it had been brought as a civil action. 28
U.S.C. § 1915 allows indigent litigants to bring a civil
action in federal court without first paying the
administrative costs associating with filing such an action.
However, as a protection against abuses, § 1915 allows courts
to dismiss an in forma pauperis claim if "the
action is frivolous" or "fails to state a claim on
which relief may be granted." Additionally, § 1915
provides a three-strike provision for claims that are
frivolous, malicious, or failing to state a ground upon which
relief may be granted; on the third-strike, an offending
plaintiff will have to pay all filing fees up front for
subsequent lawsuits. See Blakely v. Wards,
738 F.3d 607, 609 (4th Cir. 2013), as amended (Oct.
appears to allege that Defendants, who were involved in his
arrest, prosecution, conviction, and unsuccessful habeas
petition, committed offenses against Plaintiff, rendering him
a "crime victim" as defined under 18 U.S.C. § 3771
("a person directly and proximately harmed as a result
of the commission of a Federal offense...."). However,
Plaintiff's allegations are too vague and conclusory to
plausibly suggest that Defendants committed criminal
Plaintiff's Complaint a liberal construction, as courts
are instructed to do in pro se pleadings,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the
Magistrate Judge also analyzed Plaintiff's claims under
42 U.S.C. § 1983. Though a failure to expressly invoke § 1983
will not prevent a complaint from proceeding, the complaint
must still "plead facts sufficient to show that [the]
claim has substantive plausibility." Johnson v. City
of Shelby, Miss., 135 S.Ct. 346, 347 (2014). Plaintiff
makes no allegation to support a claim that his
constitutional rights were violated. The court finds that the
Magistrate Judge properly concluded that Plaintiff's
Criminal Complaint should be dismissed.
citing Plaintiff's two previous habeas petitions and four
previous civil rights actions brought against Defendants, the
Magistrate Judge recommended that the instant action count as
one "strike" against Plaintiff under § 1915's
upon the foregoing, the court adopts and incorporates herein
by reference the Report and Recommendation of the Magistrate
Judge. This matter is SUMMARILY DISMISSED, with prejudice.
This summary dismissal shall be ...