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Gerrick v. Waters

United States District Court, D. South Carolina, Aiken Division

December 6, 2018

Sammie Gerrick, Plaintiff,
S. Creighton Waters, Jason S. Anders, SLED Agent Dowling, Defendant.


         This matter is before the court for review of the Magistrate Judge's Report and Recommendation (“Report”) filed on November 2, 2018 (ECF No. 7). The court ACCEPTS the Magistrate Judge's Report and incorporates it herein by reference. For the reasons set out in the Report, the court DISMISSES Plaintiff Sammie Gerrick's (“Plaintiff”) Complaint (ECF No. 1) without prejudice and without issuance and service of process.


         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (Id. at 1-3.) As brief background, on October 23, 2018, Plaintiff, proceeding pro se and in forma pauperis, filed the instant § 1983 action, seeking damages against Defendants S. Creighton Waters and Jason S. Anders, attorneys in the South Carolina Attorney General's Office, and Defendant Dowling, an agent in the South Carolina Law Enforcement Division (together “Defendants”). (ECF No. 1.) Plaintiff alleges his due process rights under the Fourth Amendment were violated by “[Defendants] making intimidating threats of taking [his] wife['s] autistic child from her custody if she did not testify against Plaintiff, without his consent.” (Id. at 5.) Plaintiff argues his wife's testimony was illegally compelled in violation of the spousal communications privilege under S.C. Code § 19-11-30.[1] (Id. at 2-3, 5-6, 9.)

         On November 2, 2018, the Magistrate Judge entered her Report. (ECF No. 7.) The Magistrate Judge found Plaintiff's claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994), [2] because,

Plaintiff has provided no factual allegations to show that he successfully challenged his conviction. Thus, to the extent Plaintiff raises a cognizable claim that the [D]efendants' purported threat against his wife violated his rights in his state criminal trial, such a claim would be barred at this time by the holding in Heck.

(Id. at 3-4.) Thus, the Magistrate Judge recommended the Complaint be dismissed without prejudice and without issuance and service of process. (Id. at 4.)

         On November 19, 2018, Plaintiff filed an Objection to the Report. (ECF No. 9.) Plaintiff asserts that although he is

still in the appeal process in his criminal conviction[, ] this action is not being taken to invalidate his criminal conviction. It has been taken in an effort to correct such corruption and/or illegal actions by state actors in these highly sensitive positions. Which is not only for himself but in the public interest.

(Id. at 1.) Plaintiff requests that the court hold this action in abeyance until the conclusion of his appeal. (Id. at 2.)


         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a recommendation to this court, and the recommendation has no presumptive weight. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The responsibility to make a final determination remains with the court. Id. at 271. As such, the court is charged with making de novo determinations of those portions of the Report and Recommendation to which specific objections are made. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). Thus, the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         Objections to a Report and Recommendation must identify specific findings of the Report and state the basis for objecting to those findings. Fed.R.Civ.P. 72(b). “[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 & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file a specific, written objection to a Report will result in a waiver of the right to appeal from an order based upon a Report. 28 U.S.C § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 845-47 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If a party fails to properly object because the objection lacks the requisite specificity, then de novo review by the court is not required. See Suttles v. Chater, No. 96-2138, 1997 WL 76900, at *1 (4th Cir. Feb. 25, 1997) (holding that “general, non-specific objections” are not sufficient when objecting to a magistrate judge's recommendation) (citing Howard v. Secretary, 932 F.2d 505, 508-09 (6th Cir. 1991); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1985)).

         The court is required to interpret pro se documents liberally and will hold those documents to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012 WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally, pro se documents must be construed in a manner, “no matter how inartfully pleaded, to see whether they could provide a basis for relief.” Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug. 12, 1997).

         III. ...

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