McDaniels v. Wright et al

Filing 20

ORDER adopting 10 Report and Recommendation. Motions denied: 18 MOTION for Reimbursement of Funds, 13 MOTION to Waive Filing Fee, 16 MOTION to Reopen Case, 15 MOTION for Judgment of Acquittal Based Upon Fact ual Innocence and Fundamental Miscarriage of Justice, 19 MOTION for Reimbursement of Funds in the amount of $350.00 for Filing Fee. The Plaintiff's complaint is DISMISSED without prejudice and without issuance and service of process. Signed by Chief Judge Terry L Wooten on 1/12/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Kevin Wayne McDaniels,

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Plaintiff,
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vs.
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Chuck Wright, Spartanburg Co. Sheriff;
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Tim Tucker, Spartanburg Co. Sheriff
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Deputy; Phil Easler, Spartanburg Co.
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Sheriff Deputy; Barry Barnette,
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Spartanburg Co. Solicitor; Robert B. Hall, )
Spartanburg Co. Public Defender;
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Durham Cole, Spartanburg Co. Chief
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Judge; Alan Wilson, South Carolina
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Attorney General; Leah Moody, Attorney )
at Law; Kevin Owens, Attorney at Law;
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South Carolina Department of Corrections, )
sued in their individual and official
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capacity;
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Defendants.
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______________________________________ )

C/A No.: 1:14-cv-03728-TLW

ORDER
Plaintiff Kevin Wayne McDonald, proceeding pro se and in forma pauperis, filed this
action on May 2, 2014, alleging violation of his constitutional rights pursuant to 42 U.S.C. §
1983 and the South Carolina Tort Claims Act. Doc. #1. This matter now comes before this Court
for review of the Report and Recommendation (“the Report”) filed on September 30, 2014, by
Magistrate Judge Shiva V. Hodges, Doc. #10, to whom this case was previously assigned. In the
Report, the Magistrate Judge recommends that the Court summarily dismiss the complaint in this
case without prejudice and without issuance and service of process. Plaintiff filed objections to
the Report on October 9, 2014. Doc. #12. He filed supplemental objections to the Report on

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November 3, 2014. Doc. #17. Also before the Court are Plaintiff’s Motion to Waive Filing Fee,
Doc. #13, Motion for Judgment of Acquittal, Doc. #15, Motion to Reopen Case, Doc. #16, and
two Motions for Reimbursement of Funds, Docs. #18, 19.
The Court has reviewed the Report and the objections. In conducting this review, the
Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
those portions of the report or specified findings or recommendation as to which
an objection is made. However, the Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court's
review of the Report thus depends on whether or not objections have been filed,
in either case the Court is free, after review, to accept, reject, or modify any of the
magistrate judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and objections thereto, the Court hereby
ACCEPTS the Report. The Plaintiff’s objections, Docs. #12, 17, are OVERRULED.1 The
Plaintiff’s complaint is DISMISSED without prejudice and without issuance and service of
process.
As noted above, several additional motions are pending in this case. Plaintiff has filed
three motions requesting the Court to waive or refund his filing fees. Docs. #13, 18, 19. The

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To the extent Plaintiff alleges that he is actually innocent, see e.g. Docs. #1, 15, the Plaintiff has not provided the
Court with any newly discovered evidence. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1933, (2013) (noting that
actual innocence “applies to a severely confined category: cases in which new evidence shows ‘it is more likely than
not that no reasonable juror would have convicted [the petitioner].’” As the Plaintiff himself notes, he was aware of
the evidence he now relies on at the time of the original state proceedings. Doc. #1 at 3.

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Prison Litigation Reform Act (PLRA) of 1996 permits a prisoner to file a civil action without
prepayment of fees or security, but requires the prisoner “to pay the full amount of the filing fee”
as funds are available. See 28 U.S.C. § 1915(a), (b). As a result, Plaintiff’s motions regarding
waiver and refund of the filing fees are DENIED.
Plaintiff also filed two remaining filings: the first is captioned “Motion for Judgment of
Acquittal Based Upon Factual Innocence and Fundamental Miscarriage of Justice,” Doc. #15,
and the second is captioned “Motion to Re-Open Judgment,” Doc. #16. To the extent these
filings re-allege the claims asserted in his §1983 filing, the motions are denied for the reasons
stated above. To the extent these filings seek to challenge Plaintiff’s sentence pursuant to 28
U.S.C. § 2254, Plaintiff has already filed a § 2254 petition and must request permission from the
Fourth Circuit Court of Appeals before filing a successive petition. See McDaniels v. Owen, No.
1:12-cv-00642-TLW (D.S.C.); see also 28 U.S.C. § 2244. To the extent Plaintiff claims actual
innocence, Plaintiff’s claim of actual innocence is without merit. See supra note 1 Thus,
Plaintiff’s motion for judgment of acquittal and motion to re-open judgment are DENIED.
IT IS SO ORDERED.

s/Terry L. Wooten
Chief United States District Judge
January 12, 2015
Columbia, South Carolina

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