United States District Court, D. South Carolina
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge.
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
9) recommending that the Court dismiss the complaint without
issuance of service of process. For the reasons set forth
below, the Court adopts the R. & R. as the order of the
Background and Relevant Facts
Nathaniel Johnson Jr. is an inmate currently confined at the
Allendale Correctional Institution. Plaintiff, who is
proceeding pro se and in forma pauperis,
filed this civil action pursuant to 42 U.S.C. § 1983,
alleging various violations of his constitutional rights by
former prosecutors David M. Pascoe, Jr., Timothy M. Wogan,
Melissa M. Milligan-Kirby, and Gail Lovell; solicitor Isaac
McDuffie Stone, III; prosecutor Angela McCall-Tanner; former
director of Beaufort County Detention Center, Phillip Foot;
Beaufort County Sheriffs Office Investigator Brian Chapman,
and retired Judge Howard P. King.
Magistrate Judge has thoroughly summarized Plaintiffs
allegations in the R. & R. (Dkt. No. 9 at 2-4.) The
Magistrate Judge determined that (1) Plaintiffs claims are
all barred by the statute of limitations because they concern
events that occurred in 2007 and earlier (Id. at 5);
(2) Plaintiffs claims against Judge King should be dismissed
because he is entitled to judicial immunity (Id. at
6); (3) Plaintiffs claims against current and former
prosecutors Stone, Milligan-Kirby, Lovell, and McCall should
be dismissed because they are entitled to prosecutorial
immunity (Id. at 6-7); (4) Plaintiffs Fourth
Amendment claims against Chapman and Foot are barred by the
Supreme Court's holding in Heck v. Humphrey, 512
U.S. 477 (1994), because a judgment in Plaintiffs favor on
those claims would render his conviction invalid
(Id. at 7-8); and (5) defendants Pascoe and Wogan
should be summarily dismissed from this action because
Plaintiffs complaint does not contain any factual allegations
of constitutional wrongdoing or discriminatory actions
attributable to Pascoe and Wogan (Id. at 8-9).
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 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).
has filed Objections to the R. & R. (Dkt. No. 11.)
However, Plaintiff does not make any specific Objections to
the Magistrate Judge's factual and legal determinations
and recommendations. Instead, Plaintiff "makes his
motion for recusal of both the United States Magistrate Judge
Shiva V. Hodges, and the United States District Judge Richard
M. Gergel . . . based upon their knowledge of the
proceedings, reasonable appearance of bias, actual bias of
their interest in the controversy to be decided, and based
upon the decision to decide without my consent in which the
Plaintiff never receive any consent forms from the Clerk of
Court, noted as a requirement Local Civ. Rule 73.03(A), (B),
& (C)." (Dkt. No. 11 at 2.)
Plaintiffs allegation that both Magistrate Judge Shiva V.
Hodges and this Court are "disqualified by their
interest in [the] controversy to be decided" is
conclusory. Plaintiff does not identify any alleged interest
of Judge Hodges or this Court in the adjudication of his
Section 1983 action, and the Court is not aware of any.
Second, Plaintiffs argument that he never consented to the
Magistrate Judge's review of his Section 1983 complaint
is unavailing. Plaintiff cites to Local Civil Rule 73.03(A)
which allows parties to consent to "have a Magistrate
Judge conduct any and all proceedings in the case and order
the entry of a final judgment." That provision is not
applicable in this case. Instead, under Local Civil Rule
73.02(B)(2)(d), "[a]ll pretrial proceedings in prisoner
petitioners for relief under 42 U.S.C. § 1983" are
subject to automatic referral to a full-time Magistrate
Judge. Under this rule, Plaintiffs Section 1983 complaint was
automatically assigned to a Magistrate Judge, and that
assignment did not require the consent of any party to this
absence of any specific objections to the R. & R.,
"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). This Court finds that the
Magistrate Judge has correctly applied the controlling law to
the facts of this case.
reasons set forth above, the Court adopts the R. & R.
(Dkt. No. 9) as the order of the Court. The complaint is
dismissed without prejudice ...