Fritz v. Akosomitas et al
Filing
71
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 45 Motion for Summary Judgment; granting 48 Motion for Summary Judgment; and DISMISSES the Complaint. Signed by Honorable Richard M Gergel on 3/23/2015.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLiNA"
William Edward Fritz, #358823,
Plaintiff,
v.
Allyn Akosomitas and Detective
Kimberly Milks,
Defendants.
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ZO 15 MAR 23 P 3: 31
Civil Action No.2: 13-3532-RMG
ORDER
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This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge (Dkt. No. 67) recommending that this Court grant the Defendants' Motions to
Dismiss (Dkt. Nos. 45 and 48) and dismiss the case with prejudice. The Court hereby adopts the
R&R.
Plaintiff filed suit pursuant to 42 U .S.C. § 1983 on December 19, 2013, alleging that
Defendants conspired to fabricate a charge against him for burglary and that Defendant Milks
gave false testimony to support the charge. (Dkt. No.1). He requested four types of relief: for
the charge to be dropped, for compensation for lost wages during the time he was in prison, for
an apology, and for a change of venue for his prosecution. (Id at 5).
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court makes a de novo
determination of those portions of the R&R to which specific objection is made and may "accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(l). In this case the Magistrate Judge, in an order totaling fifteen
pages, carefully and thoroughly addressed each of the Petitioner's grounds; found each lacked
legal merit and recommended that the Defendants' motions for summary judgment be granted.
(Dkt. No. 67). Plaintiff is not entitled to relief for several reasons, including the fact that the
burglary charge has already been dropped as part of a guilty plea to other charges and the fact
that all of the evidence in the record indicates that Plaintiffs arrest and subsequent charge were
based on probable cause that he committed the burglary in question. (Dkt. No. 67 at 11-12).
Plaintiff filed objections to the R&R on February 25, 2015. (Dkt. No. 69). However, the
objections reargue the same points asserted by Plaintiff in the Complaint and the Responses to
the Motions for Summary Judgment (Dkt. Nos. 55 and 56); namely, that no evidence showed
that he had removed property from the address where a theft was reported. However, the record
shows that Defendant Milks collected witness testimony that indicated that Plaintiff was at the
address where the theft of aluminum cans and copper wire took place, as well as video footage
showing Plaintiff selling aluminum cans and copper wire to a scrap metal dealer within a week
of the crime. Furthermore, as the R&R points out, no Section 1983 relief is available to a
plaintiff who cannot show that the proceedings in question were ultimately terminated in his
favor. (R&R at 67, citing Heck v. Humphrey, 512 U.S. 477 (1994)).
The Court has reviewed the R&R, the full administrative record in this matter, the
relevant legal authorities, and Plaintiffs objections to the R&R. It hereby ADOPTS the R&R as
the order of the Court, GRANTS the Motions to Dismiss (Dkt. Nos. 45 and 48), and DISMISSES
the Complaint.
AND IT IS SO ORDERED.
2
Richard Mark
g 1
United States Distric Court Judge
March <..~, 2015
Charleston, South Carolina
3
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