Selman v. Olens

Filing 5

OPINION AND ORDER ADOPTING the 3 Final Report and Recommendation. IT IS FURTHER ORDERED that that Plaintiff's Complaint 1 is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 9/24/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STANLEY SELMAN,
Plaintiff,
v.

1:14-cv-1165-WSD

SAMUEL S. OLENS,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [3] (“R&R”). The R&R considers Plaintiff Stanley
Selman’s (“Plaintiff”) Complaint [1] (“Complaint”). The Magistrate Judge
recommended that Plaintiff’s Complaint be dismissed without prejudice for failure
to comply with the Magistrate Judge’s May 9, 2014, Order [2].
I.

BACKGROUND
Plaintiff is currently incarcerated at Central State Prison in Macon, Georgia,

for his 1995 conviction for malice murder and possession of a firearm during the
commission of a crime. On April 18, 2014, Plaintiff filed his Complaint, seeking
to compel Mr. Samuel S. Olens, the Attorney General of Georgia, to answer
whether: 1) “there [can] be an offense of Malice Murder without being indicted for

the offense of Aggravated Assault according to the statute in 1994-1995 for a
conviction in the State of Georgia?”; and 2) “[w]hat constitutes a violent crime of
Malice Murder without committing or being charged with the offense of
aggravated assault – without being indicted by a grand jury?” Plaintiff appears to
be challenging his conviction for malice murder based upon his not being indicted
for aggravated assault.
When filing his Complaint, Plaintiff did not pay the filing and administrative
fee required for civil actions and did not file an application to proceed in forma
pauperis. On May 9, 2014, the Magistrate Judge entered an Order [2] requiring
Plaintiff, within thirty (30) days, to submit:
(1) either the filing and administrative fee of $400 or an application to
proceed IFP, which must include a prison official’s certification
regarding Plaintiff’s inmate financial account, if he is financially
unable to pay the fee; and (2) a supplement to his complaint that
identifies the crimes for which he was indicted and the crimes for
which he was convicted.
(Order at 2-3).
Plaintiff did not comply with the Magistrate Judge’s May 9, 2014, Order.
On July 2, 2014, the Magistrate Judge recommended that the Court dismiss
Plaintiff’s Complaint for failure to comply with the Order. (R&R at 1). Plaintiff
did not file any objections to the R&R.

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II.

DISCUSSION
After conducting a careful and complete review of the findings and

recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). A district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
As Plaintiff has not objected to the Magistrate Judge’s R&R, the Court
reviews the Magistrate Judge’s findings and recommendations for plain error. See
Slay 714 F.2d at 1095. The Magistrate Judge found that Plaintiff failed to comply
with the May 9, 2014, Order, and properly recommended that the Court dismiss
Plaintiff’s Complaint.1 See LR 41.3(A)(2), NDGa. The Court finds no plain error
in Magistrate Judge’s findings and recommendation. See Slay, 714 F.2d at 1095.

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The Magistrate Judge also noted that Plaintiff’s claims, if successful, would
demonstrate the invalidity of his conviction for malice murder, and are thus barred.
See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (“the district court must
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Gerrilyn G. Brill’s Final

Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that that Plaintiff’s Complaint [1] is
DISMISSED WITHOUT PREJUDICE.

SO ORDERED this 24th day of September, 2014.

consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.”).
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