Luckett v. Simon et al

Filing 141

ORDER RULING ON 122 REPORT AND RECOMMENDATION grants 91 Motion for Summary Judgment and dismisses this matter with prejudice. Signed by Honorable Cameron McGowan Currie on 8/24/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Mr. Leroy Luckett,

)
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Plaintiff,
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v.
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Ms. S. Bracey Simon, Lee Correctional
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Postal/Mailroom Staff; Associate Warden )
J.J. Brooks, Jr.,
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Defendants.
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___________________________________ )

C/A NO. 0:13-2115-CMC-PJG

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant
to 42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and
a Report and Recommendation (“Report”). On May 28, 2015, the Magistrate Judge issued a Report
recommending that Defendants’ motion for summary judgment be granted, that Plaintiff’s pending
motions be terminated as moot, and this be matter dismissed with prejudice. The Magistrate Judge
advised the parties of the procedures and requirements for filing objections to the Report and the
serious consequences if they failed to do so.
On June 19, 2015, the court adopted the Report and granted summary judgment to
Defendants. ECF No. 127. On June 29, 2015, the court received Plaintiff’s motion for extension
of time to file objections which had been mailed on June 19, 2015. ECF No. 130. Out of an
abundance of caution, the court vacated its order and the judgment entered June 19, and granted
Plaintiff’s motion for an extension of time to file objections. Plaintiff filed a second motion for
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extension on July 23, 2015. This motion was also granted,1 and Plaintiff filed objections on August
17, 2015.
A review of Plaintiff’s objections reveals that Plaintiff fails to overcome Defendants’ motion
for summary judgment. Plaintiff’s previous habeas corpus petition2 was dismissed with prejudice
as untimely filed. As relates to the current case, Plaintiff fails to establish an actual injury necessary
to sustain this matter. That is, that he would be entitled to equitable tolling of the statute of
limitations for filing his federal habeas corpus petition, that his federal habeas corpus petition was
nonfrivolous, or that it was arguably meritorious. As noted by the Magistrate Judge, even taking
as true Plaintiff’s allegations regarding Defendant’s alleged deliberate actions in the delay of the
mailing of his motion for extension of time, Plaintiff cannot show that the habeas corpus petition
would not have been dismissed as untimely filed.
The court therefore grants Defendants’ motion for summary judgment and dismisses this
matter with prejudice.
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
August 24, 2015

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The Clerk shall terminate ECF Nos. 130 and 137 as granted.

2

Luckett v. Bodison, D.S.C. Civil Action No. 0:09-1101-CMC-PJG.
2