Curry v. South Carolina Law Enforcement Div, The et al

Filing 12

ORDER adopting 9 Report and Recommendation. This action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 11/10/2014.(abuc)

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA James Bernard Curry, ) ) Plaintiff, ) ) v. ) ) South Carolina Law Enforcement Division; ) Chief Mark A. Keel; and Captain John T. ) Bishop, ) ) Defendants. ) ______________________________________ ) C/A No. 1:14-4032-JFA-SVH ORDER The pro se plaintiff, James Bernard Curry, is an inmate at the South Carolina Department of Corrections. He brings this action under 42 U.S.C. § 1983 contending that the defendants violated his constitutional rights by allegedly engaging in evidence tampering and perjury relating to his state criminal conviction. The Magistrate Judge assigned to this action1 has prepared a Report and Recommendation and opines that the complaint should be summarily dismissed. The Report sets forth in detail the relevant facts and standards of law on this matter, and the court incorporates such without a recitation. 1 The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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 the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). 1 The plaintiff was advised of his right to file objections to the Report and Recommendation, which was entered on the docket on October 21, 2014. However, the plaintiff failed to file objections and the deadline within which to do so has expired. In the absence of specific objections to the Report of the Magistrate Judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Magistrate Judge opines that under the United States Supreme Court’s ruling in Heck v. Humphrey, 512 U.S. 477 (1994), plaintiff’s claim for damages is barred where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been successfully challenged. Moreover, as plaintiff has not demonstrated that his conviction has been reversed, expunged, or declared invalid by a state court, and no federal writ has been issued, the action must be dismissed for failure to state a claim and his claim for monetary damages under § 1983 is barred by Heck. The Magistrate Judge also properly suggests that this court is without jurisdiction to grant mandamus relief under 28 U.S.C. § 1361 to state agencies. This court agrees with the Magistrate Judge. After carefully reviewing the applicable laws, the record in this case, and the Report and Recommendation, this court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts and applies the correct principles of law. The Report is 2 adopted and incorporated herein by reference. Accordingly, this action is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED. November 10, 2014 Columbia, South Carolina Joseph F. Anderson, Jr. United States District Judge 3

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