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Turner v. Daquigan

United States District Court, D. South Carolina

June 11, 2018

Kendell Kenneth Turner, Plaintiff,
v.
Detective Sgt. Donald Daquigan, Charleston Police Department, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Merchant United States Magistrate Judge.

         The 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).

         Records 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, https://jcmsweb.charlestoncounty.org/PublicIn dex/CaseDetails.aspx?County= 10&CourtAgency= 10001 &Casenum=2015 Al 010900571 &Case Type=C(forgerycharge); https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx7Coun ty= 10&CourtAgency= 10001 &Casenum=2016A1010203909&CaseType=C (exposure charge); https://j cmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County= 10&CourtAgency= 10001&Casenum=2016A1010203093&CaseType=C (shoplifting charge)(last visited June 7, 2018).

         Plaintiffs 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.

         Discussion

         Under 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].

         First, 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"].

         Further, 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].[1]

         Recommendation

         Based on the foregoing, it is recommended that the Court dismiss Plaintiffs Complaint without prejudice and without issuance and service of process.

         Plaintiffs attention is directed to the important notice or/the next page.

         Notice of Right to File Objections to Report and Recommendation

         The 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 committee's note).

         Specific 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 ...


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