United States District Court, D. South Carolina, Rock Hill Division
Thomas C. Wilson, Plaintiff,
Sally Ann Chickering, Defendants.
OPINION & ORDER
Timothy M. Cain United States District Judge.
Thomas C. Wilson (“Wilson”), proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983.
On August 24, 2016, the magistrate judge filed a Report and
Recommendation (“Report”) in which she
recommended that the Amended Complaint be dismissed without
prejudice and without issuance and service of process and
that Plaintiff's motion for summary judgment (ECF No. 14)
be terminated. (ECF No. 25). Wilson did not file objections
and the time to do so has now run. Wilson, however, filed a
Notice of Appeal. (ECF No. 27).
magistrate judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
magistrate judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1).
court is obligated to conduct a de novo review of every
portion of the magistrate judge's report to which
objections have been filed. Id. However, the 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's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
magistrate judge summarizes the facts and background of this
case in her Report. Briefly, Wilson is a pretrial detainee at
the Charleston County Detention Center
(“CCDC”). In this action, Wilson has named his
former wife Sally Ann Chickering (“Chickering”)
as a defendant. He alleges that she lied to the IRS and this
caused him to be convicted of embezzlement. Wilson is seeking
money damages and an order finding that Plaintiff did not
embezzle any funds and that Chickering evaded taxes.
magistrate judge determined that, in the Amended Complaint,
Wilson failed to state a cognizable claim and failed to
comply with Federal Rule of Civil Procedure 8. (Report at 4).
In the supporting documents attached to his Notice of Appeal,
Wilson contends that “[t]he Tax Court [has] exonerated
[him] of any wrongdoing, ” and that Chickering
willfully attempted to evade her tax obligation. (ECF No.
27-1 at 2-3). Wilson contends that he is not asking for the
court to rule that he did not embezzle and funds or that
Chickering had committed tax evasion. (Id. at 3). He
states that he has not asked for summary judgment at this
point and he “request[s] that his claim be allowed to
go forward and with two depositions the District Court could
rule as to the ‘embezzlement' issue whether
[Chickering] did in fact willfully attempt to evade income
tax . . . .” (ECF No. 27-1 at 1, 3). The requested
relief, however, is unavailable - whether it is sought prior
to depositions and discovery or afterwards.
Wilson appears to be seeking the prosecution of Chickering
for tax evasion. However, “[n]o citizen has an
enforceable right to institute a criminal prosecution.”
Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir.1990)
(citing Linda R. v. Richard V., 410 U.S. 614, 619
(1973) (“In American jurisprudence at least, a private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.”)).
Additionally, prosecutorial discretion does not reside in the
judicial branch. The decision whether or not to prosecute,
and what charge to file or bring, generally rests within the
prosecutor's discretion. Bordenkircher v. Haves,
434 U.S. 357, 364 (1978). Accordingly, part of the relief
Wilson seeks, the criminal prosecution of Chickering, has no
basis in law.
to the extent Wilson requests that this court declare that he
did not embezzle any funds, this appears to be a challenge to
his current criminal proceedings in state court. Absent
extraordinary circumstances, this court should abstain from
interfering with Wilson's pending state criminal
proceedings. See Younger v. Harris, 401 U.S. 37, 44
(1971). Federal district courts should abstain from
constitutional challenges to state judicial proceedings if
the federal claims could be presented in the ongoing state
judicial proceeding. See Cinema Blue of Charlotte, Inc.
v. Gilchrist, 887 F.2d 49, 52-53 (4th Cir. 1989). The
United States Court of Appeals for the Fourth Circuit has
recognized that the “Younger abstention is
appropriate only in those cases in which (1) there is an
on-going state judicial proceeding, (2) the proceeding
implicates important state interests, and (3) there is an
adequate opportunity to present the federal claims in the
state proceeding.” Employers Resource Management
Co., Inc. v. Shannon, 65 F.3d 1126, 1134 (4th Cir.
1995). The state court docket shows that Wilson's state
criminal proceedings are on-going. The State of South
Carolina has an important interest in maintaining the
efficient operation of its criminal justice system without
undue federal interference. Therefore, to the extent Wilson
seeks to interfere with the pending state criminal
proceedings against him, this court abstains from hearing
on the foregoing, the court adopts the Report (ECF No. 25).
Accordingly, the Amended Complaint is DISMISSED without
prejudice and without issuance and service of process.
Additionally, the Clerk is directed to terminate Wilson's
Summary Judgment Motion (ECF No. 14).