United States District Court, D. South Carolina
ORDER AND OPINION
Howe Hendricks United States District Judge.
Timothy Leon Charley (“Plantiff”), proceeding
pro se and in forma pauperis, filed this
action pursuant to 42 U.S.C. § 1983. Plaintiff has
brought suit alleging his constitutional rights were
violated, and is seeking monetary and punitive damages, an
apology, and any other relief the court deems proper. (ECF
No. 1.) This matter is before the Court for review of the
Report and Recommendation (“Report”) of United
States Magistrate Judge Kevin F. McDonald made in accordance
with 28 U.S.C. § 636(b) and Local Rule 73.02 for the
District of South Carolina.
January 4, 2017, the Magistrate Judge issued a Report
recommending that this case be dismissed without prejudice.
(ECF No. 9.) Plaintiff filed objections (ECF No. 17) to the
Report on January 17, 2017.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The Court must make a de novo determination
of those portions of the Report, or specified proposed
findings or recommendations to which specific objection is
made. 28 U.S.C. § 636(b)(1)(C). The Court may accept,
reject, or modify, in whole or in part, the Report or may
recommit the matter to the Magistrate Judge with
instructions. Id. 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). De novo review is also “unnecessary in
. . . situations when a party makes 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).
reviewing these pleadings, the Court is mindful of the
plaintiff's pro se status. This Court is charged
with liberally construing the pleadings of a pro se
litigant. See, e.g., De'Lonta v. Angelone, 330
F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal
construction does not mean, however, that the Court can
ignore a plaintiff's clear failure to allege facts that
set forth a cognizable claim, or that the Court must assume
the existence of a genuine issue of material fact where none
exists. See United States v. Wilson, 699 F.3d 789,
797 (4th Cir. 2012).
filed objections (ECF No. 17) to the Report, which the Court
has carefully reviewed. Plaintiff specifically objects to the
Magistrate Judge's finding that Plaintiff failed to plead
a cognizable § 1983 claim because in order to do so a
plaintiff must demonstrate both that he was deprived of a
federal right and that the person depriving that right did so
under color of state law. (Id. at 2.) Plaintiff
insists that he was deprived of his right to file a
petition for a writ of habeas corpus, and that the person
depriving him was acting under color of state law,
because his appeal from a State Circuit Court order denying
and dismissing his third application for post-conviction
relief was dismissed by the Supreme Court of South Carolina.
(Id. at 2-3; ECF No. 17-1.) Plaintiff's
objections seek to bolster the permissibility of his §
1983 claim, and apparently add a new legal theory that his
constitutional rights have been violated because the State
Courts' refused to consider his third PCR application.
All of this has nothing to do with the reasons why Magistrate
Judge McDonald recommended that Plaintiff's claims be
Court finds that the Report fairly and accurately summarizes
the facts and applies the correct principles of law, and the
Court agrees with the analysis of the Magistrate Judge.
Plaintiff has not stated a cognizable § 1983 claim
pursuant to the U.S. Supreme Court's holding in Heck
v. Humphrey, 512 U.S. 477 (1994), because he is seeking
to recover damages for allegedly unconstitutional conviction,
imprisonment, or other harm whose unlawfulness would render
his conviction or imprisonment invalid, without having first
shown that his conviction or sentence has been invalidated.
Id. at 486-87. The case that Plaintiff cites for the
proposition that Heck does not apply here,
Johnson v. Freeburn, 29 F.Supp.2d 764 (E.D. Mich.
1998) (see ECF No. 17 at 2-3), is entirely
inapplicable to the facts and claims at issue, and merits no
reasons stated above and by the Magistrate Judge, and after
de novo review, the Court overrules Plaintiff's
objections, and adopts and incorporates by reference the
Magistrate Judge's Report. Accordingly, this action is
DISMISSED without prejudice.
OF RIGHT TO APPEAL
parties are hereby notified that any right to appeal this
Order is governed by Rules 3 and 4 of the ...