United States District Court, D. South Carolina, Anderson/Greenwood Division
Charles E. Phagan, Jr., Plaintiff,
Victoria Gurney, Chase Webber, Judge Lawton R. McIntosh, Anderson County, and Richland County, Defendants.
Timothy M. Cain United States District Judge.
Charles E. Phagan, Jr. (“Plaintiff”), a state
prisoner proceeding pro se and in forma pauperis,
filed this action pursuant to 42 U.S.C. § 1983. In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge's Report and Recommendation
(“Report”), recommending that Plaintiff's
action be dismissed without prejudice. (ECF No. 13).
Plaintiff was advised of his right to file objections to the
Report. (ECF No. 13 at 17). The court extended the time for
Plaintiff to file objections and he filed timely objections
on May 30, 2018. (ECF No. 20).
Magistrate Judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Report, the magistrate judge recommends that the court
dismiss Plaintiff's complaint because it is frivolous and
barred by Heck v. Humphrey, 512 U.S. 477 (1994), and
additionally because Plaintiff failed to allege a cognizable
claim against any of the Defendants. As noted above, the
magistrate judge also states in a footnote that the complaint
in this case is identical to and appears to be a copy of the
complaint that Plaintiff filed in Phagan v. Webber,
C.A. No. 8:18-cv-0564. Id. at 1. The court filed
an order adopting the magistrate judge's Report and
dismissing Plaintiff's action in that case on June 25,
2018. (C.A. No. 8:18-cv-0564, ECF No. 19). No appeal has been
taken of that order.
court agrees with the magistrate judge's conclusion that
Plaintiff's action is barred by Heck, 512 U.S.
477, and also finds that Plaintiff's complaint is a
duplicative filing. (ECF No. 1 and C.A. No. 8:18-cv-0564, ECF
No. 1). Because the present action is duplicative of another
case filed by Plaintiff which was already addressed and
dismissed by this court, this action warrants dismissal.
“[R]epetitious litigation of virtually identical causes
of action may be dismissed under 28 U.S.C. § 1915 as
frivolous.” Paul v. de Holczer, Case No.
3:15-2178-CMC- PJG, 2015 WL 4545974, at *6 (D.S.C. July 28,
2015) (holding that “the instant Complaint should be
summarily dismissed as a frivolous duplicate filing in the
interest of judicial economy and efficiency”),
affirmed by 631 Fed. App'x 197 (4th Cir.
February 4, 2016); see also Cox v. Cartledge, Case
No. 3:13-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013),
adopted by 2013 WL 1401674 (D.S.C. April 8, 2013)
district courts are not required to entertain duplicative
lawsuits, they may dismiss such suits as frivolous pursuant
to § 1915(e).” Cottle v. Bell, 229 F.3d
1142, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per
curiam). Accordingly, as a duplicative filing, the present
case is frivolous and subject to summary dismissal. Reviewing
Plaintiff's objections, the court finds them to be
without merit as none of his objections remedy the fact that
this action is duplicative and barred by Heck.
court has thoroughly reviewed the Report of the magistrate
judge and the filings in this case. For the reasons set forth
above and by the magistrate judge, the court overrules
Plaintiff's objections and hereby adopts the Report (ECF
No. 13) and incorporates it herein. Accordingly, it is hereby
ORDERED that this action is
DISMISSED without prejudice and without
issuance and service of process.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate
 The magistrate judge noted that the
complaint in this case (ECF No. 1) is identical to and
appears to be a copy of the complaint that Plaintiff filed in
Phagan v. Webber, C.A. No. 8:18-cv-0564.
 The Fourth Circuit held that “a
court may properly take judicial notice of ‘matters of
public record' and other information that, under Federal
Rule of Evidence 201, constitute ‘adjudicative
facts.'” Goldfarb v. Mayor & City Council
of Baltimore, 791 F.3d 500 (4th Cir. 2015); see also
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th
Cir. 1989) (“We note that the most frequent use of
judicial notice is in noticing the content of court
records.”);.Aloe Creme Laboratories, Inc. v.
Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)
(“The District Court clearly had ...