Smyth v. Wilson et al

Filing 18

ORDER adopting as modified the 11 Report and Recommendation, dismissing Plaintiff's complaint without prejudice and without issuance and service of process, and denying as moot Plaintiff's 13 motion to stay. Signed by Honorable R. Bryan Harwell on 8/10/2018. (bgoo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Keith Adger Smyth,

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Plaintiff,
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v.
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Alan Wilson, J. Derham Cole, and )
Anthony C. Leibert,
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Defendants.
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______________________________)

Civil Action No.: 0:18-cv-01443-RBH

ORDER

This matter is before the Court for review of the Report and Recommendation (“R & R”) of
United States Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2) (D.S.C.).1 See ECF No. 11. The Magistrate Judge recommends summarily
dismissing Plaintiff’s pro se complaint without prejudice. Id. at pp. 1, 5.
The 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 this Court.
See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the R & R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

1

The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02 (D.S.C.), and she reviewed Plaintiff’s complaint pursuant to the screening provisions of 28 U.S.C.
§§ 1915(e)(2) and 1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). But see Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) (“Principles requiring generous construction of pro se complaints are not, however, without limits.
Gordon directs district courts to construe pro se complaints liberally. It does not require those courts to conjure up
questions never squarely presented to them.”).

Plaintiff has not filed objections to the R & R, and the time for doing so has expired.2 In the
absence of objections to the R & R, the Court is not required to give any explanation for adopting the
Magistrate Judge’s recommendations. See Camby v. Davis, 718 F.2d 198, 199–200 (4th Cir. 1983).
The Court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Acc. 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 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)).
After a thorough review of the record in this case, the Court finds no clear error and therefore
adopts the Magistrate Judge’s R & R [ECF No. 11] as modified herein.3 Accordingly, the Court
DISMISSES Plaintiff’s complaint without prejudice and without issuance and service of process and

2

Plaintiff’s objections were due by July 30, 2018. See ECF Nos. 11 & 12. Plaintiff did file a motion to stay
within the time for filing objections, see ECF No. 13, but this document does not contain any specific objections to
the R & R. Moreover, this motion to stay does not request additional time to file objections. As noted above, the
Court need only review the R & R for clear error in the absence of a specific objection. See Diamond, infra.
Moreover, the Court notes Plaintiff requested two § 1983 complaint forms (via his motion to stay), and the Clerk
accordingly mailed him those forms. See ECF Nos. 13 & 14.
3

The Court finds Plaintiff’s claims fail not only for the reasons set forth in the R & R but also for a simple
reason not discussed in the R & R—they are barred by the Supreme Court’s decision in Heck v. Humphrey, 512 U.S.
477 (1994). Heck bars Plaintiff’s claims because success on them would necessarily imply the invalidity of his
criminal convictions, which have not been overturned or otherwise called into question. See Wilkinson v. Dotson,
544 U.S. 74, 81–82 (2005) (explaining that under Heck and related cases, “a state prisoner’s § 1983 action is barred
(absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the
prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would
necessarily demonstrate the invalidity of confinement or its duration”); Edwards v. Balisok, 520 U.S. 641, 646 (1997)
(extending Heck to civil rights actions that do not directly challenge confinement, but instead contest procedures
which necessarily imply unlawful confinement); Young v. Nickols, 413 F.3d 416, 417 (4th Cir. 2005) (“Heck . . . bars
a prisoner’s § 1983 claim if the relief sought necessarily implies the invalidity of his criminal judgment.”). Under
Heck and its progeny, the Court cannot grant Plaintiff the relief he seeks. See, e.g., Green v. Horry Cty., No.
4:17-CV-01304-RBH, 2017 WL 4324843, at *1 (D.S.C. Sept. 29, 2017) (applying Heck for similar reasons), aff’d,
709 F. App’x 215 (4th Cir. 2018). Accordingly, the Court modifies the R & R to reflect this additional reason for
dismissal.

2

DENIES AS MOOT his motion to stay [ECF No. 13].4
IT IS SO ORDERED.

Florence, South Carolina
August 10, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

4

In the Court’s view, Plaintiff cannot cure the defects in his complaint by mere amendment, see Goode v.
Cent. Virginia Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015), and therefore the Court declines to
automatically give him leave to amend.

3