United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Merchant United States Magistrate Judge.
Plaintiff, Kendell Kenneth Turner, proceeding pro se and in
forma pauperis, brings this action pursuant to 42
U.S.C. § 1983. He is an inmate at the Lieber
Correctional Institution, part of the South Carolina
Department of Corrections (SCDC).
from Charleston County indicate that Plaintiff pled guilty on
September 16, 2016 to charges of forgery, value less than
$10, 000 for which he was sentenced to three years
imprisonment; obscene/exposure of private parts in a lewd and
lascivious matter for which he was sentenced to six months
imprisonment; and shoplifting/value $2000 or less for which
he was sentenced to five years (provided that upon serving
three years the balance was to be suspended with two years
probation). These records indicate that Plaintiff was
arrested on all three of these charges in July 2016. See
Charleston County Public Index,
dex/CaseDetails.aspx?County= 10&CourtAgency= 10001
&Casenum=2015 Al 010900571 &Case Type=C(forgerycharge);
ty= 10&CourtAgency= 10001 &Casenum=2016A1010203909&CaseType=C
(exposure charge); https://j
(shoplifting charge)(last visited June 7, 2018).
claims concern the charge(s) for which he is currently
incarcerated. He alleges that he was previously detained at
the Charleston County Jail on other charges in March 2015,
for which he was sentenced to a period of incarceration and
transferred to the SCDC. Plaintiff claims that an arrest
warrant on another charge was issued on August 21, 2015, but
was not served on him prior to his release from the SCDC on
July 1, 2016. Complaint, ECF No. 1 at 5. He states that he
did not sustain any injuries, but complains that he was let
out of SCDC on July 1, 2016 with a pending active warrant.
Plaintiff asserts that Defendant Sergeant Daquigan and the
Charleston Police Department had plenty of time to serve the
warrant while he was previously detained and incarcerated on
his other charge/conviction, and that if the warrant on the
new charge (for which he is currently serving time) had been
served while he was at the state facility, the pending
warrant could have been added to his prison sentence.
Plaintiff requests monetary damages for "loss of
time" because he is doing time on a charge that he
thinks should have been dismissed. ECF No. 1 at 6. He has
submitted copies of the arrest warrant and arrest report as
to the forgery charge. ECF No. 1-1.
established local procedure in this judicial district, a
careful review has been made of the pro se Complaint pursuant
to the procedural provisions of 28 U.S.C. § 1915 and
§ 1915A, the Prison Litigation Reform Act, Pub.L. No.
104-134, 110 Stat. 1321 (1996), and in light of the following
precedents: Denton v. Hernandez. 504 U.S. 25 (1992),
Neitzke v. Williams, 490 U.S. 319 (1989), Haines
v. Kerner. 404 U.S. 519 (1972), Nasim v. Warden.
Maryland House of Corr., 64 F.3d 951 (4th Cir.
1995), and Todd v. Baskerville. 712 F.2d 70 (4th
Cir. 1983). Prose complaints are held to a less stringent
standard than those drafted by attorneys, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a
federal district court is charged with liberally construing a
pro se complaint to allow the development of a potentially
meritorious case. Hughes v. Rowe, 449 U.S. 5, 9
(1980); Cruz v. Beto. 405 U.S. 319 (1972);
Erickson v. Pardus. 551 U.S. 89, 93 (2007) (citing
Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 555-56
(2007)). However, even when considered pursuant to this
liberal standard, for the reasons set forth herein below this
case is subject to summary dismissal. The requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleading to allege facts which set
forth a claim cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs.. 901 F.2d 387
(4th Cir. 1990); see also Ashcroft v. Iqbal, 556
U.S. 662 (2009) [outlining pleading requirements under the
Federal Rules of Civil Procedure].
to the extent that Plaintiff is requesting to be released
from incarceration, he may not obtain such relief by filing a
§ 1983 action, as such relief may only be obtained in a
habeas action. See Preiser v. Rodriguez. 411 U.S.
475, 500 (l973)[complaint or petition challenging the fact or
duration of confinement should be construed and processed as
a habeas corpus petition, while a complaint or petition
challenging the conditions of confinement should be construed
and processed as a complaint pursuant to 42 U.S.C. §
1983]. In Heck v. Humphrey. 512 U.S. 477 (1994), the
Supreme Court reiterated that release from prison is not a
remedy available under 42 U.S.C. § 1983. Heck.
512 U.S. at 481 [stating that "habeas corpus is the
exclusive remedy for a state prisoner who challenges the fact
or duration of his confinement and seeks immediate or
speedier release, even though such a claim may come within
the literal terms of § 1983"].
Plaintiffs request for monetary damages for his alleged false
imprisonment and/or malicious prosecution is subject to
summary dismissal because a state prisoner's claim for
damages is not cognizable under § 1983 where success of
the action would implicitly call into question the validity
of the conviction or duration of the sentence, unless the
prisoner can demonstrate that the conviction or sentence has
been previously invalidated. See Heck. 512 U.S. at
486-487. As Plaintiff has not alleged that the conviction he
challenges has been invalidated, these claims are therefore
barred by Heck and should be dismissed. See
Lambert v. Williams, 223 F.3d 257, 260-261 (4th Cir.
2000)[claim for malicious prosecution requires a showing that
the initiation or maintenance of a proceeding against the
plaintiff was without probable cause to support it and a
termination thereof occurred in favor of the plaintiff],
cert, denied. 531 U.S. 1130 (2001); Brooks v.
City of Winston-Salem. 85 F.3d 178, 183 (4th Cir.
1996)[Claim for malicious prosecution does "not accrue
until a favorable termination is obtained."]; Roesch
v. Otarola 980 F.2d 850, 853-854 (2d Cir. 1992)[holding
that requirement that a plaintiff receive favorable
determination applies to claims of false arrest, false
imprisonment, and malicious prosecution].
on the foregoing, it is recommended that the Court dismiss
Plaintiffs Complaint without prejudice and without issuance
and service of process.
attention is directed to the important notice or/the next
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. "[I]n the
absence of a timely filed objection, 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.'"
Diamond v. Colonial Life & Ace. Ins. Co.. 416 F.3d
310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P.
6(a), (d). Filing by mail pursuant to Federal ...