United States District Court, D. South Carolina, Florence Division
Robert L. Mitchell, #140920, Plaintiff,
Magistrate Judge Miller, Barbara Morgan, Judge Costa Pleicones, Defendants.
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff's Amended
Complaint pursuant to 42 U.S.C. § 1983. ECF No. 10. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), D.S.C., the matter was referred to United
States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings. On August 6, 2019, the Magistrate Judge issued a
Report and Recommendation (“Report”) recommending
this matter be summarily dismissed with prejudice and without
issuance and service of process based on judicial and
prosecutorial immunity, and on statute of limitations and the
“favorable termination” requirement in Heck v.
Humphrey, 512 U.S. 477, 487 (1994). ECF No. 15. The
Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the
serious consequences if he failed to do so. Plaintiff filed
objections on August 6, 2019. ECF No. 17.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The court
is charged with making a de novo determination of any portion
of the Report of the Magistrate Judge to which a specific
objection is made. The court may accept, reject, or modify,
in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b). The
court reviews the Report only for clear error in the absence
of an objection. 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.”)
considering the record, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Plaintiff's
objections, the court agrees with the Report's
recommendation the case be dismissed. As noted by the
Magistrate Judge, Judges Miller and Pleicones are entitled to
absolute judicial immunity, and Barbara Morgan, a Barnwell
county Solicitor, is entitled to prosecutorial immunity.
Further, it appears Plaintiff's false arrest claim is
barred by the statute of limitations, and a malicious
prosecution claim for damages and injunctive relief related
to prosecution of criminal charges is barred by Heck because
Plaintiff has not shown favorable termination of the criminal
proceedings against him. To the extent Plaintiff requests
release from imprisonment, such a remedy is not available
under § 1983.
Plaintiff's objections alter these conclusions. He argues
the Report does not contain factual findings, and therefore
fails to address the facts specific to Plaintiff's case.
ECF No. 17 at 2. Further, he argues this failure and the
recommendation in the Report to “deny Plaintiff service
of process” shows prejudicial intent and therefore the
Magistrate Judge should recuse. Id. He also seems to
suggest the Report is somehow defamatory. Id. at 4.
In Plaintiff's separate motion for summary judgment,
temporary restraining order, and preliminary injunction, he
contends he was “denied proper due process by
Magistrate Judge Miller, Solicitor Barbara Morgan, trial
judge Costa Pelicones [sic].” ECF No. 18 at 1. He
argues the substance of his Due Process claim regarding his
criminal proceedings in 1994, during which he alleges he was
mentally ill and should not have been convicted. He also
contends the “aforementioned defendants perform[ed]
outside the scope of their duties.” Id. at 5.
court finds these objections unavailing. Judges Mitchell and
Pleicones had absolute judicial immunity, and no set of facts
would allow a plaintiff to sue them for judicial actions.
Solicitor Morgan was covered by prosecutorial immunity, which
shields solicitors from damages liability when acting in the
scope of their duties. Applying this law to the facts as
alleged by Plaintiff, it is clear he cannot bring suit
against these Defendants as he challenges their actions in
connection with his criminal case. Plaintiff has been given
an opportunity to amend, and it does not appear Plaintiff
would be able to further amend his Amended Complaint to
allege any facts that would allow him to sue these
the court adopts the Report by reference in this Order.
Plaintiff's motion (ECF No. 18) is denied. This matter is
hereby dismissed with prejudice and without issuance and
service of process.
 After Plaintiff filed his original
Complaint (ECF No. 1), the Magistrate Judge entered a Proper
Form Order, notifying Plaintiff of deficiencies in his
Complaint - specifically, that claims against judicial
defendants are barred by absolute judicial immunity, and
claims against a solicitor are barred by prosecutorial
immunity - and allowing him an opportunity to file an Amended
Complaint. See ECF No. 7. Plaintiff filed his Amended
Complaint on July 2, 2019. ECF No. 11.
 Plaintiff also filed a Motion for
Summary Judgment, for Temporary Restraining Order, and for
Preliminary Injunction on ...