United States District Court, D. South Carolina
Patrick Mcintosh, a/k/a Patrick R. Mcintosh, Plaintiff,
George Randall Taylor, Charleston County S.C. Sheriffs Department, Trident Technical College, Federal Bureau of Investigation, Defendants.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
proceeding pro se and in forma pauperis,
filed this action under 42 U.S.C. § 1983 and/or
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971). This matter is
before the Court on the Report and Recommendation ("R.
& R.") of the Magistrate Judge (Dkt. No. 15)
recommending that the Court dismiss Plaintiffs complaint
without prejudice and without issuance of service of process.
For the reasons set forth below, this Court adopts the R.
& R. as the order of the Court.
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep 't of
Social Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate's 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. See 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). 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 omitted).
Magistrate Judge has adequately summarized Plaintiffs
allegations in the R & R., so this Court has not repeated
them in detail here. (Dkt. No. 15 at 1-5.) On January 20,
2015, Plaintiff was charged in a superseding indictment with
receiving firearms and ammunition while under indictment for
felony (Count One), making a threat on the life of the
President of the United States (Count Two), Threats to Law
Enforcement (Count Three), and Threats by Interstate
Communication (Count Four). Following a bench trial,
Plaintiff was found not guilty of all counts by reason of
insanity and was civilly committed to the custody of the
filed this lawsuit seeking monetary damages for
Defendants' alleged violations of his constitutional
rights in connection with the 2012 search of his house and
what he characterizes as the "malicious"
prosecution that followed. The Magistrate has explained that
this action is subject to summary dismissal because (1)
Heck v. Humphrey, 512 U.S. 477 (1994) bars
Plaintiffs claims for damages that are predicated on his
assertion that his civil detention is improper; (2) Plaintiff
failed to make any specific allegations against Defendant
Trident Technical College; (3) Defendant Charleston County
Sheriffs Office is entitled to Eleventh Amendment Immunity
from a suit for monetary damages; (4) Plaintiff has remedies
in tort under South Carolina law to obtain relief for his
allegedly stolen personal property (i.e., the alleged illegal
seizure of computers and a panda costume); and (5) to the
extent Plaintiff is attempting to assert tort claims against
a Federal defendant, he has failed to allege that he has
exhausted his remedies under the Federal Tort Claims Act, 28
U.S.C. § 2671, et seq. Plaintiff has not filed
any objections to the R. & R. This Court finds that the
Magistrate has correctly applied the controlling law to the
facts of this case.
reasons set forth above, this Court adopts the R. & R. as
the order of the Court. This action is dismissed without
prejudice and without issuance of service of process.