United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court 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. § 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. §
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).
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 § 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 § 1983 case. Claims
that would call into question the validity of an underlying
state criminal conviction or sentence are not cognizable
under § 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 § 1983); see
also S.C. Code Ann. § 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 §
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
§ 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. 3:10-3053-CMC-JRM, 2011 WL 635302 at *4n.5(D.S.C, Jan. 5,
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 §
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 ...