United States District Court, D. South Carolina, Florence Division
Oliver M. Boling, Plaintiff,
United States of America, Defendant.
CAMERON MCGOWAN CURRIE District Judge.
matter is before the court on Plaintiff's complaint
pursuant to the Federal Tort Claims Act, 28 U.S.C. §
1346, alleging the United States of America was negligent in
failing to properly compute his sentence and good time
credit. ECF No. 1. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02 (B)(2)(d), D.S.C.,
this matter was referred to United States Magistrate Judge
Thomas E. Rogers, III, for pre-trial proceedings and a Report
and Recommendation (“Report”) on dispositive
issues. On May 8, 2017, the Magistrate Judge issued a Report
recommending that this matter be summarily dismissed without
prejudice and without issuance and service of process. ECF
No. 7. The Magistrate Judge advised the parties of the
procedures and requirements for filing objections to the
Report and the serious consequences if they failed to do so.
Plaintiff filed objections to the Report on May 22, 2017. ECF
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b).
objects “to the entire Magistrate Judge's
R&R.” ECF No. 9. First, Plaintiff objects to the
Magistrate Judge's granting of his motion to proceed
in forma pauperis (“IFP”) but
recommending his complaint be dismissed without service. As
noted by the Magistrate Judge, the court is statutorily
required to “dismiss the case at any time if the court
determines that - the action or appeal is frivolous or
malicious, fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. 1915(e)(2)(B).
Plaintiff argues “[i]t's also clearly undisputable
that the Magistrate Judge never ruled that the
Plaintiff's claims were frivolous or else it would not
have granted him a motion to proceed in forma
pauperis.” ECF No. 9 at 4. The Magistrate Judge granted
Plaintiff's motion to proceed IFP so that his complaint
could be filed without prepaying the filing fee: “A
review of the motion reveals that Plaintiff should be
relieved of the obligation to prepay the full filing fee.
Plaintiff's motion for leave to proceed in forma
pauperis is granted . . .” ECF No. 5.
Plaintiff's IFP status does not mean his complaint passes
muster under § 1915(e)(2)(B).
next argues the Magistrate Judge erred by “erroneously
recharacterizing Plaintiff's Federal Tort Claim Civil
Action as a successive Section 2255 motion without
Plaintiff's consent violates the Supreme Courts decision
in Castro v. United States.” ECF No. 9 at 5. However,
Plaintiff's reliance on Castro is misplaced.
Castro held notice was required to a pro se
criminal defendant when he files his first motion to
vacate under 28 U.S.C. § 2255. Castro v. United
States, 540 U.S. 375, 383 (2003) (“The limitation
[on the court's recharacterization powers] applies when a
court recharacterizes a pro se litigant's motion
as a first § 2255 motion.”). It does not apply to
a second or successive § 2255, as the filing defendant
would already be subject to the restrictions on second or
successive motions under § 2255. See Id.
Further, the Magistrate Judge's Report contains mere
recommendations, which are not binding on the District Court.
Therefore, although not necessary for recharacterization in
this case, Plaintiff has had the opportunity to contest the
recharacterization and provide further information, and has
in fact done so in his objections.
Plaintiff argues he should be allowed to proceed pursuant to
the FTCA because he seeks damages under the FTCA, not release
from confinement. However, Heck clearly disallows
damages for allegedly unconstitutional imprisonment if the
sentence has not been declared invalid or called into
question. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994) (“We hold that, in order to recover damages for
allegedly unconstitutional conviction or imprisonment,
Clipse, 602 F.3d 605, 608 (4th Cir. 2010)
(“In forma pauperis plaintiffs must rely on
the district court and the U.S. Marshals Service to effect
service of process according to 28 U.S.C. §
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2244.”). As Plaintiff's sentence remains
valid despite many challenges from Plaintiff, he may not
proceed with his action for damages under the
FTCA. Id. at 487 (“A claim for
damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under
considering the record, the applicable law, the Report and
Recommendation of the Magistrate Judge and Plaintiff's
objections, the court agrees with the Report's
recommendation the complaint be dismissed. Plaintiff has
brought suit for damages under the Federal Tort Claims Act;
however, he challenges the computation of his sentence at the
Bureau of Prisons. As noted by the Magistrate Judge, the
Supreme Court has disallowed damages for allegedly
unconstitutional conviction or imprisonment when the
conviction or sentence has not been reversed, expunged,
declared invalid, or called into question. Heck, 512
U.S. at 486-87. For the reasons above, the court adopts the
Report and incorporates it by reference. Plaintiff's
complaint is dismissed without prejudice and without issuance
and service of process.
IS SO ORDERED.
 Plaintiff filed a previous habeas
application regarding the computation of his sentence on
September 22, 2016. See Boling v. Warden FCI Estill,
No. 4:16-cv-03227. It was dismissed without prejudice as
successive on December 28, 2016.
 Plaintiff cites Danik v. Housing
Authority of Baltimore City, 396 F. App'x 15 (4th
Cir. 2010), an unpublished case, in support of his argument
against summary dismissal because his IFP motion was granted.
However, this case merely stands for the proposition the
United States Marshals Service is to effectuate service of
process for IFP cases. Id. at 16 (citing
Robinson v. Footnote Continued . . .
 Plaintiff also argues his FTCA cause
of action states a claim on which relief may be granted.
However, this argument is foreclosed by Heck ...