Mack v. Robbins et al

Filing 18

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and DISMISSING WITHOUT PREJUDICE this action without issuance and service of process. Signed by Honorable Richard M Gergel on 8/17/2016.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

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10 Ib AUG 11 P 2: I 0

Nathaniel Mack,

Plaintiff,
v.
Robert D. Robbins, et al.
Defendants.

Civil Action No.2: 16-1705-RMG

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ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary dismissal without service of process of this action filed pursuant
to 42 U.S.C. § 1983.

For the reasons set forth below, the Court adopts the Report and

Recommendation.

I.

Legal Standard
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. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.c. § 636(b)(l).
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 97] F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002).

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"[ A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.

Jackson, 831 F. Supp. 2d 911, 914 (M.D.N.C. 2010) (listing cases).

II.

Discussion
Plaintiff was convicted of murder in South Carolina state court in 2001. In this § 1983

action, he asserts that he was convicted based on falsified inculpatory evidence and destroyed
exculpatory evidence, and that the Dorchester County Solicitor had a disqualifying conflict of
interest in his prosecution. For relief, he seeks release from prison, a pardon, and two million
dollars.
As the Magistrate Judge notes, release from prison and a pardon are not forms of relief
available in a § 1983 case. Claims that would call into question the validity of an underlying state
criminal conviction or sentence are not cognizable under § 1983 unless the plaintiff can
demonstrate that the conviction or sentence has been previously invalidated. Heck v. Humphrey,
512 U.S. 477, 486-87 (1994). Any claims regarding the Solicitor's purported conflict ofinterest
are time-barred by the applicable three-year limitations period. See Wilson v. Garcia, 471 U.S.
261, 266 (1985) (state law concerning limitation of actions applies in claims brought under
§ 1983); see also S.C. Code Ann. § 15-3-530 (three-year limitations period). Plaintiffs claims
against the St. George Police Department are not cognizable because a police department is not a
person amendable to suit under § 1983. See, e.g., Petaway v. City of New Haven Police Dep't,
541 F. Supp.2d 504, 510 (D. Conn. 2008). Finally, Plaintiff neglects to make any allegations at
all regarding Defendants Hill, Riley, Gantt, and Ruff. When a § 1983 complaint contains no
personal allegations against a defendant, that defendant is properly dismissed, because the plaintiff
must affirmatively show that each defendant acted personally to deprive plaintiff of his

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constitutional rights. See Curtis v. Ozmint, Civ. No. 3:1O-3053-CMC-JRM, 2011 WL 635302 at
*4 n.5 (D.S.C. Jan. 5,2011).
On August 12, 2016, Plaintiff mailed a declaration stating that, since filing this action, he
has learned that an unidentified Defendant (presumably the Solicitor) is immune from this suit
pursuant to Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993) (holding that a prosecutor in his
role as advocate for the state enjoys absolute immunity from § 1983 liability), and that the State
of South Carolina (which is not a defendant in this action) is immune from this suit under Hans v.

Louisiana, 134 U.S. 1 (1890) (referring to states' immunity under the Eleventh Amendment). He
asks for his claims against those parties to be disregarded and for suit to proceed against the
remaining Defendants. It appears that Plaintiff filed his declaration as an objection to the Report
and Recommendation; however, it is not responsive to any complaint's fatal defects that were
identified by the Magistrate Judge.
III.

Conclusion

For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge as the Order of the Court (Dkt. No. 15) and DISMISSES WITHOUT
PREJUDICE this action without issuance and service of process.
AND IT IS SO ORDERED.

United States District Court Judge
August j2 2016
Charleston, South Carolina

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