United States District Court, D. South Carolina, Charleston Division
Nathaniel Mack, Plaintiff, Pro Se.
RICHARD MARK GERGEL, District Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending summary dismissal
without service of process of this action filed pursuant to
42 U.S.C. Â§ 1983. For the reasons set forth below, the Court
adopts the Report and Recommendation.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. Â§ 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to introduce
new evidence after the magistrate judge has acted are
disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
was convicted of murder in South Carolina state court in
2001. In this Â§ 1983 action, he asserts that he was convicted
based on falsified inculpatory evidence and destroyed
exculpatory evidence, and that the Dorchester County
Solicitor had a disqualifying conflict of interest in his
prosecution. For relief, he seeks release from prison, a
pardon, and two million dollars.
Magistrate Judge notes, release from prison and a pardon are
not forms of relief available in a Â§ 1983 case. Claims that
would call into question the validity of an underlying state
criminal conviction or sentence are not cognizable under Â§
1983 unless the plaintiff can demonstrate that the conviction
or sentence has been previously invalidated. Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). Any claims
regarding the Solicitor's purported conflict of interest
are time-barred by the applicable three-year limitations
period. See Wilson v. Garcia, 471 U.S. 261,
266 (1985) (state law concerning limitation of actions
applies in claims brought under Â§ 1983); see also
S.C. Code Ann. Â§ 15-3-530 (three-year limitations period).
Plaintiffs claims against the St. George Police Department
are not cognizable because a police department is not a
person amendable to suit under Â§ 1983. See, e.g.,
Petaway v. City of New Haven Police Dep't, 541
F.Supp.2d 504, 510 (D. Conn. 2008). Finally, Plaintiff
neglects to make any allegations at all regarding Defendants
Hill, Riley, Gantt, and Ruff. When a Â§ 1983 complaint
contains no personal allegations against a defendant, that
defendant is properly dismissed, because the plaintiff must
affirmatively show that each defendant acted personally to
deprive plaintiff of his constitutional rights. See
Curtis v. Ozmint, Civ. No. 3:1O-3053-CMC-JRM, 2011 WL
635302 at *4 n.5 (D.S.C. Jan. 5, 2011).
August 12, 2016, Plaintiff mailed a declaration stating that,
since filing this action, he has learned that an unidentified
Defendant (presumably the Solicitor) is immune from this suit
pursuant to Buckley v. Fitzsimmons, 509 U.S. 259,
272-73 (1993) (holding that a prosecutor in his role as
advocate for the state enjoys absolute immunity from Â§ 1983
liability), and that the State of South Carolina (which is
not a defendant in this action) is immune from this suit
under Hans v. Louisiana, 134 U.S. 1 (1890)
(referring to states' immunity under the Eleventh
Amendment). He asks for his claims against those parties to
be disregarded and for suit to proceed against the remaining
Defendants. It appears that Plaintiff filed his declaration
as an objection to the Report and Recommendation; however, it
is not responsive to any complaint's fatal defects that
were identified by the Magistrate Judge.
foregoing reasons, the Court ADOPTS the Report and
Recommendation of the Magistrate Judge as the Order of the
Court (Dkt. No. 15) and DISMISSES WITHOUT PREJUDICE ...