United States District Court, D. South Carolina, Aiken Division
Timothy M. Cain United States District Judge.
a pre-trial detainee proceeding pro se, filed this action
pursuant to 42 U.S.C. § 1983. In accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C.,
these matters were referred to a magistrate judge for
pretrial handling. Before the court is the magistrate
judge's Report and Recommendation (“Report”),
recommending that the court dismiss Plaintiff's complaint
without prejudice and without issuance and service of
process. (ECF No. 7). Plaintiff was advised of his right to
file objections to the Report. (ECF No. 7 at 5). Plaintiff,
however, filed no objections to the Report, and the time to
do so has now run.
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in 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, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
review, the court finds no clear error and adopts the
magistrate judge's Report. Briefly, plaintiff alleged
that defendants failed to fulfill his requests for legal
materials, his attorney's name and his attorney's
phone number. (ECF No.1 at 3). Plaintiff claims that this
refusal has denied him the right to participate in his
defense and thus violated his constitutional rights.
Id. However, the Constitution does not guarantee
inmates an adequate law library or “legal
assistance” program but does guarantee reasonable
access to the courts. See Lewis v. Casey, 518 U.S.
343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 838
(1977). To establish an unconstitutional burden on his right
of access to the courts, a prisoner must meet “the
basic requirement that he show specific harm or prejudice
from the allegedly denied access.” Strickler v.
Waters, 989 F.2d 1375, 1384 (4th Cir. 1993); see,
e.g., Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996)
(“The district court . . . properly dismissed
Cochran's claim that prison officials infringed his right
of access to the courts. In making such a claim, a prisoner
cannot rely on conclusory allegations. Specificity is
necessary so that prison officials are not required to file
unnecessary responses to speculative allegations.”
(citation omitted)); Jones v. Prison Health Services
Inc., 2008 WL 4908024 (D.S.C. Oct. 3, 2008) (“A
plaintiff must demonstrate, for example, that the inadequacy
of the prison law library or the available legal assistance
caused such actual injury as the late filing of a court
document or the dismissal of an otherwise meritorious
time of filing, plaintiff had been appointed counsel and his
criminal case was in the pretrial phase, thus, there was no
disposition as to his criminal charges. United States v.
Carver, 6:16-cr-281-TMC (D.S.C. filed Mar. 13, 2016)
(ECF No. 24). Assuming plaintiff's allegations as
true, plaintiff failed to allege how his right of access to
the courts was infringed. Plaintiff's claim did not
specifically assert how defendants' failure to provide
legal materials or his attorney's name and phone number
has caused actual injury to plaintiff's defense or
ability to pursue a meritorious claim. Furthermore, the fact
that this case was filed indicates that plaintiff has
not been denied access to the courts. Thus,
plaintiff failed to state a claim on which relief could be
construed, plaintiff's complaint may also generally
allege that his right to counsel was violated. “The
deliberate denial of counsel, absent an intelligent and
voluntary waiver, is a deprivation of rights guaranteed by
the Sixth and Fourteenth Amendments.” Clark v.
County of Tulane, 755 F.Supp.2d 1075, 1089 (E.D. Cal.
2010) (citing Robichaud v. Ronan, 351 F.2d 533 (9th
Cir.1965)). However, a prisoner may not raise claims in a
§ 1983 action, whether the relief sought is injunctive,
declaratory, or monetary, if “success in that action
would necessarily demonstrate the invalidity of confinement
or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 82 (2005). Plaintiff may only recover damages in a
§ 1983 suit for an allegedly unconstitutional conviction
or imprisonment if his sentence is first reversed on appeal,
expunged by executive pardon, or called into question by a
federal court's issuance of a writ of habeas corpus.
See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Here, plaintiff's claim that refusal to provide his
attorney's name and telephone number amounted to denial
of counsel, if found to have merit, would call into question
the validity of his conviction. See, e.g., Kanz v.
Wisconsin, 84 Fed.Appx. 677, 677-78 (7th Cir. 2003);
Kilbane v. Huron Cty. Comm'rs, 2011 WL 1666928
(N.D. Ohio 2011). Before such a claim may be proper,
plaintiff would need to be convicted and subsequently have
that conviction invalidated. Neither has yet happened, thus
the claim must be dismissed.
thorough review of the Report and the record in this case,
the court adopts the magistrate judge's Report (ECF No.
7) and incorporates it herein. It is therefore ORDERED that
Plaintiff's Complaint is DISMISSED without prejudice and
without issuance and service of process.
 To date, plaintiff's criminal case
remains pending. See United States v. Carver,
6:16-cr-281-TMC (D.S.C. ...