West v. Adams et al
ORDER adopting 17 Report and Recommendation of Magistrate Judge Mary Gordon Baker. Plaintiff's complaint is summarily dismissed without prejudice and without issuance and service of process. The court declines to exercise jurisdiction over any state law claims asserted by Plaintiff. Signed by Honorable Margaret B Seymour on 1/18/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jason Antonio West, #196740,
) C/A No. 2:16-3452-MBS
Brian Adams, Johnathon Glenn, Daniel
Pritchard, Chuck Hurst, Bill Tilton,
Herbert Johnson, Tireka Cerone,
Michael Brown, Anthony Russ, Craig
McAlhaney, Chris Lietow, Leon E.
Stavrinakis, Louis S. Moore, Katherine
Kirkland, and Shawn Perkins,
Plaintiff Jason Antonio West is an inmate in custody of the South Carolina Department of
Corrections currently housed at Goodman Correctional Institution in Columbia, South Carolina.
Plaintiff is serving a five year sentence for trafficking in cocaine. Plaintiff, proceeding pro se and in
forma pauperis, filed a complaint on October 19, 2016, alleging that Defendants Adams, Glenn,
Pritchard, Hurst, Tilton, Johnson, Cerone, Perkins, Brown, Russ, Kirkland, and McAlhaney,
members of the North Charleston Police Department, violated his Fourth Amendment rights by
executing an “unproduced and unrecorded” search warrant at his residence, which search led to his
incarceration. Plaintiff further alleges that he received ineffective assistance of counsel in violation
of the Sixth Amendment from Defendants Stavrinakis and Moore during their representation of him.
Plaintiff also alleges that Defendant Lietow, a state solicitor, violated his rights under the Fourteenth
Amendment by prosecuting the case. See 42.U.S.C. § 1983. In addition, Plaintiff asserts numerous
state law claims. Plaintiff seeks relief in the form of compensatory and punitive damages.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Mary Gordon Baker for pretrial handling. The Magistrate Judge
reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915 and applicable precedents. The
Magistrate Judge determined that recovery for damages under § 1983 is prohibited under Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). The Magistrate Judge further determined that Plaintiff’s
counsel were not state actors for purposes of § 1983, and that ineffective assistance of counsel claims
should be raised in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In addition,
the Magistrate Judge determined that the state solicitor is immune from suit in his official capacity
based on sovereign immunity, and further immune from suit in his individual capacity based on
absolute prosecutorial immunity.
The Magistrate Judge therefore issued a Report and
Recommendation on November 22, 2016, recommending that Plaintiff’s complaint be summarily
dismissed without prejudice and without issuance and service of process. On December 8, 2016,
Plaintiff was granted an extension of time until December 27, 2016, to file objections to the Report
and Recommendation. Plaintiff filed no objections to the Report and Recommendation. However,
on December 8, 2016, Plaintiff filed a “Notice to Revisit” in which he “thank[ed] the courts for
allowing [him] to revisit this action properly on a later date” with all supporting facts. ECF No. 19.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court 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)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. In the absence of a timely filed objection, a district court need not conduct a 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
The court has thoroughly reviewed the record. The court concurs in the Report and
Recommendation and incorporates it herein by reference. Plaintiff’s complaint is summarily
dismissed without prejudice and without issuance and service of process. The court declines to
exercise jurisdiction over any state law claims asserted by Plaintiff. See 28 U.S.C. § 1367.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
January 18, 2017
NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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