United States District Court, D. South Carolina, Florence Division
Timothy M. Cain United States District Judge.
Steve Lester (“Lester”), proceeding pro se and
in forma pauperis, filed this action pursuant to 42
U.S.C. § 1983. In accordance with 28 U.S.C. §
636(b)(1) and Local Civ. Rule 73.02, DSC, this matter was
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 the complaint, with prejudice and without
issuance and service of process. (ECF No. 8). The magistrate
judge further recommended that the dismissal be deemed a
strike pursuant to 28 U.S.C. § 1915(g). Id.
Lester filed timely objections to the Report, (ECF No. 11),
and this matter is ripe for review.
magistrate judge makes only a recommendation to the court.
The 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 making that determination, the court is
charged with conducting a de novo review of those portions of
the Report to which either party specifically objects.
See 28 U.S.C. § 636(b)(1). Then, the court may
accept, reject, or modify the Report or recommit the matter
to the magistrate judge. Id.
magistrate judge's Report found that Lester's
complaint, to the extent that he asserted deprivation of
property, was duplicative of the complaints in three prior
§ 1983 cases brought by Lester involving the same
incident. As the magistrate judge noted, even an intentional
deprivation of property by a governmental employee, if
unauthorized, does not violate the Due Process Clause if a
meaningful post-deprivation remedy for the loss is available.
(ECF No. 8 at 4). Because Lester has a meaningful remedy in
state court pursuant to the South Carolina Tort Claims Act,
the magistrate judge recommended summary dismissal.
objections contain largely a recitation of the facts
underlying his claim and the allegations laid out in his
complaint, rather than specific objections to the magistrate
judge's Report. (ECF No. 11). Liberally construing the
objections, the court gleans that Lester objects to the
magistrate judge's Report because it allegedly took three
years for him to receive the incident report written by
Captain Randall about the April 12, 2010 incident. He asserts
that this incident report is newly discovered evidence for
the district court. However, a copy of the incident report
was attached to Lester's complaint and did not change the
magistrate judge's analysis of the merits of his claim,
which was dismissed on three previous
occasions. (ECF No. 1-1 at 3). Likewise, to the
extent that he asserts the intentional deprivation of
property, the submission of the incident report has no effect
on the court's analysis of Lester's claim because it
is not being dismissed for lack of proof or on the basis of
the statute of limitations. Rather, Lester's claim is
subject to summary dismissal because he has a meaningful
remedy under South Carolina state law, SC Code Ann. §
15-78-10 et seq.; see Hudson v Palmer, 468 U.S. 517,
530-36 (1984), and because this claim is a frivolous
extent that Lester asserted that he was denied his right of
access to the courts, the Report stated that even if the
court did not find the complaint duplicative of the three
prior complaints, Lester's claim that he has “been
denied [his] First Amendment Right [of] access to the courts,
” (ECF No. 1 at 3), should be subject to summary
dismissal for failing to state a claim. (ECF No. 8 at 4). The
magistrate judge found that Lester failed to plead with
specificity any actual injury resulting from his alleged
deprivation of access to the courts and therefore stated no
plausible claim. Lester did not specifically object to the
magistrate judge's finding regarding the right of access
claim nor did he identify any injury. (ECF No. 11). The court
concurs with the magistrate judge's conclusion. See
Lewis v. Casey, 518 U.S. 343, 349 (1996) (holding that
prisoner must demonstrate that a nonfrivolous legal claim had
been frustrated or was being impeded); Cochran v.
Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (specific
allegations must be made as to the actual injury sustained by
the plaintiff claiming infringement of his right of access to
the courts; a prisoner cannot rely on conclusory
allegations); see also Williams v. Calton, No.
7:10CV00075, 2011 WL 320813, at *2 (W.D. Va. Jan. 28, 2011)
(“[A]n inmate must come forward with something more
than vague and conclusory allegations of inconvenience or
delay in his instigation or prosecution of legal actions;
rather, he must show that he was unable to file the initial
petition or that a petition he filed was so technically
deficient that it was dismissed without consideration of the
also states in his objection that he requests that the court
appoint counsel. However, “a plaintiff does not have an
absolute right to appointment of counsel.” Miller
v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Instead,
the provision of counsel through the auspices of the court
remains, “as [does] the privilege of proceeding in
forma pauperis, a matter within the discretion of
the District Court. It is a privilege and not a right.”
Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968).
In delineating the scope of this discretion, the United
States Court of Appeals for the Fourth Circuit has held that
a litigant “must show that his case is one with
exceptional circumstances.” Miller, 814 F.2d
at 966 (citing Cook v. Bounds, 518 F.2d 779, 780
(4th Cir. 1975)). “The question of whether such
circumstances exist in any particular case hinges on
characteristics of the claim and the litigant.”
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.1984),
abrogated in part on other grounds,
Mallard v. United States Dist. Ct. for S.D. of Iowa, 490
U.S. 296 (1989). More pointedly, “[i]f it is apparent
to the district court that a pro se litigant has a colorable
claim but lacks the capacity to present it, the district
court should appoint counsel to assist him.” Gordon
v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978). In this
case, as articulated by the magistrate judge, it is not
apparent that Lester has a colorable claim; rather, his
claims are frivolous, and therefore, do not warrant
appointment of counsel.
the Report recommended that this dismissal be deemed a
“strike” under 28 U.S.C. § 1915(g). The
court declines to deem this dismissal a strike. Construing
Lester's complaint liberally, in this case he attempted
to raise a denial of access claim for the first time. (ECF
No. 1 at 3 and 4). As discussed above, the court finds it
appropriate to dismiss this part of Plaintiff's complaint
without prejudice, for failure to state a claim. Therefore,
the court declines to issue a strike. See Odom v.
Haley, 627 Fed. App'x 250 (4th Cir. 2015) (holding
that district court's dismissal of an action for failure
to state a claim was not a strike where complaint was
dismissed partly with prejudice and partly without
prejudice); Tolbert v. Stevenson, 635 F.3d 646
(2011) (holding that in order to count as a strike, an entire
action must be dismissed as frivolous, malicious, or for
failure to state a claim).
magistrate judge stated that this would be Lester's
second strike. However, the court notes that Lester had two
strikes for the purposes of the “three strikes”
rule of 28 U.S.C. § 1915(g) prior to this action.
See Lester v. Perry Correctional Inst., et al., C.A.
No. 4:12-3038-TMC, 2012 WL 5945013 (D.S.C. Nov. 28, 2012)
(dismissing Lester's claims with prejudice for
frivolousness and issuing Lester's second strike);
Lester v. Ratigan, C.A. No. 4:12-0016-TMC, 2012 WL
1032619 (D.S.C. Mar. 27, 2012), aff'd, 487 F.
App'x 125 (4th Cir. 2012) (affirming Lester's first
strike on a claim which was summarily dismissed, without
prejudice, as frivolous). In McLean, the Fourth
Circuit stated, “[O]ur holding today should not be read
to indicate that a dismissal for frivolousness that is
rendered without prejudice should avoid a strike
designation.” McLean v. United States, 566
F.3d 391, 400 (4th Cir. 2009); Demos v. United States
Sec'y of Def., C.A. No. 2:13-1-TMC-BHH, 2013 WL
3353906, at *1 (D.S.C. May 16, 2013) ([U]nder
McLean, a ‘strike' may be
‘thrown' after a review of the case if it is
frivolous, or if it fails to state a claim upon which relief
may be granted.”). Thus, the strike issued by this
court in the March 27, 2012 decision is a valid strike
pursuant to McLean, because Lester's claim was
dismissed as frivolous, without prejudice.
Lester, 2012 WL 1032619.
thorough review of the Report and the record in this case,
the court partially adopts the magistrate judge's Report
(ECF No. 8), as detailed above, and incorporates it herein.
Accordingly, it hereby ORDERED that Plaintiff's
deprivation of property claim is DISMISSED with
prejudice and Plaintiff's denial of access claim is
DISMISSED without prejudice and without issuance and
service of process.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...