United States District Court, D. South Carolina, Charleston Division
Emory W. Roberts, Jr., #2016003071, Plaintiff,
Sheriff Dwayne Lewis, et al, Defendants.
ORDER AND OPINION
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 of
the complaint. For the reasons set forth below, the Court
adopts the Report and Recommendation and dismisses the
complaint without prejudice.
is a pretrial detainee with currently pending state criminal
charges. Although he avoids mention of the charges against
him, public records show that he is held at the Berkeley
County detention center on charges of heroin trafficking. On
January 19, 2017, he filed the present action under 42 U.S.C.
§ 1983, suing Sheriff Dwayne Lewis, Director Randy
Demory, Captain Phyall, S/A Justin Wingo, CO D. Wilson; 6) CO
Harvey; 7) CO Ravenell, 8) Corpral (sic) Carroll, 9)
Sgt. Dobbs, 10) Sgt. Samuel; 11) CO Green
(Intake/Admissions), and 12) Davis P. Schwacke (Public
Defender), in their official and individual capacities.
Plaintiff complains that officers illegally searched his home
without a warrant, arrested him without a warrant,
seized unspecified property. He also claims he was denied the
right to counsel, even though he also sues his appointed
public defender for unspecified reasons. Plaintiff alleges,
"S/A Justin Wingo did raid my home and arrest &
seize me without search warrant or arrest warrant. Dwayne
Lewis unlawfully imprisoned myself without commitment
warrant, Randy Demory & Phyall (Captain and Director)
aided & abetted this action." Plaintiff makes no
specific factual allegations against any other Defendants.
For relief, Plaintiff seeks $7.5 million in damages and
release from custody.
March 3, 2017, the Magistrate Judge recommended summary
dismissal without service of process. Plaintiff has filed no
objections to the Report and Recommendation.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "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, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F, 3d 310, 315 (4th Cir. 2005)
(internal quotation marks omitted), and this Court is not
required to give any explanation for adopting the
recommendation of the Magistrate Judge, Camby v.
Davis, 718 F.2d 198 (4th Cir. 1983).
fully set forth by the Magistrate Judge in the Report and
Recommendation, the complaint is subject to summary dismissal
for a great many reasons. Plaintiff names several Defendants
against whom he makes no specific factual allegations.
Plaintiff claims his Fourth Amendment rights were violated,
but alleges no facts supporting that claim-the mere fact that
he was arrested for trafficking in heroin, without more, is
insufficient to state a claim for a Fourth Amendment
violation. Plaintiff complains that his property was seized
without stating what property was seized; much less why South
Carolina's post-deprivation remedies are inadequate.
Plaintiff cannot sue his own counsel under § 1983.
Plaintiff is clearly attempting to interfere with his pending
state prosecution for trafficking in heroin, alleging that
his "right to bail" has been violated and demanding
release from custody, but federal courts must abstain from
interference with state criminal proceedings. Younger v,
Harris, 401 U.S. 37, 44 (1971). Finally, the remedies
Plaintiff seeks are unavailable: Release from custody is not
a remedy in a § 1983 action, Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); and money damages
for unconstitutional imprisonment are unavailable until his
conviction or sentence has been called into question-if the
pending proceedings result in a conviction and sentence,
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
foregoing reasons, the Court ADOPTS the Report and
Recommendation of the Magistrate Judge (Dkt. No. 26) as the
Order of the Court and DISMISSES WITHOUT PREJUDICE the
IS SO ORDERED.