United States District Court, D. South Carolina, Florence Division
Supreme Raheem Ackbar, #182864, a/k/a Ronald Gary, #275886 Plaintiff,
Michel McCall, et al, Defendants.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending the complaint be
dismissed without prejudice. For the reasons set forth below,
the Court adopts in part and declines to adopt in part the
Report and Recommendation, and dismisses the complaint with
is a prisoner in the custody of the South Carolina Department
of Corrections. He proceeds pro se. Plaintiff claims
deliberate indifference to serious medical needs arising from
an alleged scissors attack occurring on March 12, 2013. In a
prior case filed in June 2014, Plaintiff brought a deliberate
indifference claim arising from the same alleged attack
against substantially similar parties as in the instant
action. See Civ. No. 2:14-cv-2246-RMG. Summary
judgment was granted as to certain defendants. A bench trial
was held regarding the remaining defendants on September 8,
2016. Judgment was entered in favor of defendants. The Fourth
Circuit Court of Appeals affirmed this decision, and the
United States Supreme Court denied certiorari.
present case, Plaintiff admits he previously filed suit based
on the same facts but argues the outcome of the prior case
was erroneous because court appointed counsel "for the
purpose of sabotaging Plaintiffs case." (Dkt. No. 1 at
7.) He also complains that the Judicial Council of the Fourth
Circuit dismissed his complaint against this Court for the
decision to enter judgment for defendants in the prior suit.
On June 18, 2018, the Magistrate Judge recommended summary
dismissal of this suit as being barred by res
judicata and by the applicable statute of limitations.
On June 29, 2018, Plaintiff filed timely objections to the
Report and Recommendation. (Dkt. No. 11.) His objections,
however, are merely boilerplate general objections. He raises
no specific objection to the determinations set forth in the
Report and Recommendation.
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). Where the plaintiff fails to
file 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), and this
Court is not required to give any explanation for adopting
the recommendation of the Magistrate Judge, Camby v.
Davis, 718 F.2d 198 (4th Cir. 1983).
Prisoner Litigation Reform Act
action been filed in forma pauperis under 28 U.S.C.
§ 1915, which permits an indigent litigant to commence
an action in federal court without payment of costs. The
statute allows a district court to dismiss summarily an
action that "fails to state a claim on which relief may
be granted," "is frivolous or malicious," or
"seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B).
"With the Prisoner Litigation Reform Act
('PLRA'), Congress sought to reduce the number of
frivolous lawsuits flooding the federal courts."
Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013).
"Congress did so in part by enacting 28 U.S.C. §
1915(g), a "three-strikes" statute providing that
if a prisoner has already had three cases dismissed as
frivolous, malicious, or for failure to state a claim for
which relief may be granted, the prisoner generally may not
proceed in forma pauperis but rather must pay
up-front all filing fees for his subsequent suits."
Magistrate Judge correctly determined that this action is
barred by res judicata. "Res judicata precludes
the assertion of a claim after a judgment on the merits in a
prior suit by parties or their privies based on the same
cause of action." Meekins v. United Transp.
Union, 946 F.2d 1054, 1057 (4th Cir. 1991). A court may
sua sponte apply res judicata where
"it has previously decided the issue presented" to
"avoid unnecessary judicial waste." Ga. Pac.
Consumer Prods., LP v. Von Drehle Corp., 710 F.3d 527,
535 (4th Cir. 2013). Here, Plaintiff is attempting to
re-litigate previously adjudicated claims. Sua
sponte dismissal therefore is appropriate. See
Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, *1 (4th
Cir. Aug. 14, 2000) (holding "district courts are not
required to entertain duplicative or redundant
lawsuits") (unpublished table decision).
Magistrate Judge also correctly determined that even if
Plaintiffs claims were not barred by res judicata,
they are barred by the applicable statute of limitations. The
statute of limitations may be applied sua sponte
when the defense appears on the face of a complaint filed
in forma pauperis. Nasim v. Warden, Md. House of
Corr.,64 F.3d 951, 953-54 (4th Cir. 1995). State law
provides the statute of limitations for § 1983 claims.
In South Carolina, the applicable statute of limitations is
generally three ...