United States District Court, D. South Carolina, Orangeburg Division
Frederick L. Howell, Plaintiff,
Richard H. Gustafson; Clarissa W. Joyner; Alan M. Wilson; and Orangeburg County Public Defenders Corp., Defendants.
F. Anderson, Jr. Columbia, South Carolina United States
pro se Plaintiff, Frederick L. Howell, is an inmate
at the Turbeville Correctional Institution. He brings this
action under 42 U.S.C. § 1983 contending that the
Defendants violated his constitutional rights.
reviewing the pleadings, the Magistrate Judge assigned to
this action prepared a thorough Report and
Recommendation (“Report”) sua sponte and
opined that this case should be dismissed without prejudice
and without issuance and service of process. (ECF No. 12).
The Report sets forth, in detail, the relevant facts and
standards of law on this matter, and this Court incorporates
those facts and standards without a recitation. Plaintiff
filed objections to the Report on July 21, 2017. (ECF No.
15). Thus, this matter is ripe for review.
Court is charged with making a de novo determination
of those portions of the Report to which specific objections
are made, and the Court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983).
Howell's objection addresses several of the Report's
conclusions. First, Plaintiff Howell argues that Heck v.
Humphrey, 512 U.S. 477 (1994) should be applied to each
Defendant because each alleged violation Howell listed in his
complaint is “unique and separate.” (ECF No. 15
p. 2). The Magistrate Judge, however, correctly opined that
under the United States Supreme Court's ruling in
Heck, Plaintiff's claim for damages and release
from custody is barred where success of the action would
implicitly question the validity of the conviction or
duration of the sentence, unless the prisoner can demonstrate
that the conviction or sentence has been successfully
challenged. See Heck, 512 U.S. at 487. Moreover, as
Plaintiff has not demonstrated that his conviction has been
reversed, expunged, or declared invalid by a state court, and
no federal writ has been issued, the action must be dismissed
for failure to state a claim, and his claim for monetary
damages under § 1983 is barred by Heck.
Howell next argues that his imprisonment tolled the statute
of limitations for his § 1985 and § 1983 claims,
which would allow him to bring his claim in 2017, even though
the statute of limitations ran in 2013. (ECF No. 15 p. 3).
Plaintiff cites Fricks v. Lewis, 26 S.C. 237 (1887),
asserting that his imprisonment constitutes a disability and
thus the statute of limitations should have been tolled.
However, imprisonment will not toll the statute of
limitations because S.C. Code Ann. § 15-3-40 was amended
in 1996 to delete the tolling provision for imprisoned
persons. See Wright v. Oliver, 99 F.3d 1133 (4th
Cir. 1996). Thus, Plaintiff Howell's argument is
continues to argue that S.C. Code Ann. § 15-78-70
applies to his claims against Orangeburg Public Defenders
Corporation (“OPDC”). (ECF No. 15 p. 5). However,
as the Magistrate Judge correctly noted, OPDC does not
constitute a “person” for purposes of the statute
and “thus cannot act under color of state law.”
(ECF No. 12 p. 7). Howell also argues that S.C. Code Ann.
§ 15-3-630 is applicable to his claim against OPDC. (ECF
No. 15 p. 4). However, this Section applies to
“[a]ctions against architects, professional engineers
or contractors” and thus has no application to
Howell's case. Therefore, this argument is without merit.
Howell argues that his allegations of conspiratorial action
against Defendant Joyner and state officials were made with
sufficient specificity to suggest a meeting of the minds
pursuant to Sutton v. Calhoun, No. 86-6673, 1986 WL
18629 (4th Cir. Sept. 9, 1986). However, as the Magistrate
Judge noted, Howell has merely made a “naked assertion
of a conspiracy without supporting operative facts.”
See Bishop v. Richardson, No. 88-6616, 1988 WL
76277, at *1 (4th Cir. Jul. 21, 1988) (citing Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984);
Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.
1984)). Therefore, this argument is also unfounded.
Plaintiff Howell argues that his claim against Defendant
Wilson should stand. (ECF No. 15 p. 7). However, the Eleventh
Amendment contains a prohibition against such suit. See
Fey v. Washington, No. 16-cv-03103-WJM-MEH, 2017 WL
1344451 (D. Colo. Apr. 12, 2017) (citing Edelman v.
Jordan, 415 U.S. 651, 662-63 (1974); Levy v. Kan.
Dep't of Social & Rehab. Servs., 789 F.3d 1164,
1168 (10th Cir. 2015). Therefore, as the Magistrate Judge
pointed out, this argument is also unfounded.
carefully reviewing the applicable laws, the record in this
case, the Report, and the objection thereto, this Court finds
the Magistrate Judge's recommendation fairly and
accurately summarizes the facts and applies the correct
principles of law. The Report is adopted and incorporated
herein by reference. Accordingly, this Court adopts the
Magistrate Judge's Report and ...