United States District Court, D. South Carolina, Greenville Division
Honorable Bruce Howe Hendricks United States District Judge.
matter is before the Court upon Plaintiff Danny Charles
Mullinax's (“Plaintiff” or
“Mullinax”) pro se complaint filed pursuant to 42
U.S.C. § 1983. In his complaint, Plaintiff raises claims
related to an allegedly unconstitutional search conducted in
connection with a traffic stop and his prosecution that
resulted from the search.
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2)(d) (D.S.C.), the matter was referred to a
United States Magistrate Judge for preliminary
determinations. On April 23, 2019, Magistrate Judge Jacquelyn
D. Austin issued a report and recommendation
(“Report”) outlining Plaintiff's claims and
recommending that the Court summarily dismiss this action
without issuance and service of process. Specifically, the
Magistrate Judge explained that Plaintiff's complaint
fails to state a valid claim pursuant to § 1983 against
Sheriff Will Lewis and Greenville County Sheriff's
Office, and that these Defendants are entitled to summary
dismissal based on Eleventh Amendment immunity. Similarly,
the Magistrate Judge explained that Solicitor Matt Wallace is
entitled to absolute immunity for the alleged conduct that
relates to Wallace's actions in prosecuting Plaintiff.
The Magistrate Judge also explained that “Family
Court” is not a “person” amenable to suit
under § 1983, and that to the extent Plaintiff is
attempting to sue a particular family court judge, any judge
would be entitled to absolute judicial immunity from claims
for damages arising out of their judicial actions unless they
act in the complete absence of all jurisdiction. With respect
to Defendant Greenville County, the Magistrate Judge noted
that Plaintiff's complaint fails to allege facts
sufficient to state a plausible claim and that, in any event,
a local government may not be held liable under § 1983
solely because it employs the tort-feasor. Rather, Plaintiff
must identify a local governmental custom or policy that
caused his injury, which Plaintiff's complaint fails to
do. In addition, the Magistrate Judge explained that
Plaintiff's claims are barred by Heck v. Humphrey, 512
U.S. 477, 481 (1994), because money damages for an allegedly
unlawful warrant, search, prosecution, and seizure are not
available in this civil rights action, as Plaintiff's
conviction and sentence have not been overturned. Lastly, the
Magistrate Judge explained that Plaintiff's property
claim fails because Plaintiff has an adequate state court
remedy under the South Carolina Tort Claims Act to secure the
return of the property or to compensate for the loss.
to the Magistrate Judge's Report was a notice advising
Plaintiff of his right to file written objections to the
Report within fourteen days of being served with a copy.
Plaintiff did not file timely objections to the Report but
instead filed an amended complaint alleging similar claims
against Deputy Lovelace, Deputy John Doe I, and the State of
Magistrate Judge makes only a recommendation to the 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 only of those
portions of the Report to which specific objections are made,
and the Court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (stating that “in 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.'”) (quoting Fed.R.Civ.P. 72
advisory committee's note).
because no specific objections were filed, the Court has
reviewed the record, the applicable law, and the findings and
recommendations of the Magistrate Judge for clear error.
After review, the Court finds no clear error and agrees with
the Magistrate Judge that Plaintiff's complaint is
subject to dismissal for the reasons set forth by the
the Court has reviewed Plaintiff's amended complaint and
finds that it does not resolve the issues pointed out by the
Magistrate Judge. As an initial matter, the State of South
Carolina is entitled to Eleventh Amendment immunity. In
addition, as the Magistrate Judge properly explained,
Plaintiff's claims are premature because his conviction
and sentence have not been overturned. See Heck, 512 U.S.
477. In other words, because a favorable determination on the
merits of Plaintiff's claims would imply that his
criminal conviction and sentence are invalid, Plaintiff's
claims are subject to dismissal because a right of action has
not yet accrued. Moreover, with respect to Plaintiff's
claim that Defendant Lovelace took money from his pocket and
did not return it, the availability of a state cause of
action pursuant to the South Carolina Tort Claims Act
provides adequate due process, and Plaintiff cannot pursue
such a claim in this Court.
with respect to Plaintiff's motion to appoint counsel,
the Court notes that Plaintiff has no constitutional right to
counsel in this action, and the Court ultimately finds that
no exceptional circumstances warrant the appointment of
counsel at this time.
on the foregoing, it is hereby ORDERED that the Magistrate
Judge's Report (ECF No. 10) is adopted and incorporated
herein; Plaintiff's motion to appoint counsel (ECF No.
17) is denied; and this action is dismissed without issuance
and service of process.
 The Magistrate Judge also noted that
any attempt to cure the deficiencies in Plaintiff's
complaint would be futile. ...