United States District Court, D. South Carolina, Aiken Division
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.
FACTUAL AND PROCEDURAL BACKGROUND
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. (Id. at 2-3, 5-6, 9.)
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),
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.)
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.)
STANDARD OF REVIEW
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).
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)).
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).