Roberts v. Lewis et al

Filing 28

ORDER adopting Report and Recommendations of Magistrate Judge Mary Gordon Baker and DISMISSING WITHOUT PREJUDICE the complaint. Signed by Honorable Richard M Gergel on 3/23/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Emory W. Roberts, Jr., #2016003071,
Plaintiff,

v.
Sheriff Dwayne Lewis, et al.,
Defendants.

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Civil Action No. 2:17-177-RMG

ORDER AND OPINION

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This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary dismissal of the complaint. For the reasons set forth below, the
Court adopts the Report and Recommendation and dismisses the complaint without prejudice.

I.

Background
Plaintiff is a pretrial detainee with currently pending state criminal charges. Although he

avoids mention of the charges against him, public records show that he is held at the Berkeley
County detention center on charges of heroin trafficking. On January 19,2017, he filed the present
action under 42 U.S.C. § 1983, suing Sheriff Dwayne Lewis, Director Randy Demory, Captain
Phyall, S/A Justin Wingo, CO D. Wilson; 6) CO Harvey; 7) CO Ravenell, 8) Corpral (sic) Carroll,
9) Sgt. Dobbs, 10) Sgt. Samuel; 11) CO Green (Intake/Admissions), and 12) Davis P. Schwacke
(Public Defender), in their official and individual capacities. Plaintiff complains that officers
illegally searched his home without a warrant, arrested him without a warrant, 1 and seized

The arrest warrant for Plaintiff and an indictment charging him with trafficking in heroin,
distributing heroin, possession of a firearm while trafficking in heroin, and possession with intent
to distribute methamphetamine are filed in Plaintiff's currently pending habeas action, which
complains of the same arrest and pending prosecution as this § 1983 action. See Robert v. Lewis,
Civ. No. 2: 17-453-RMG-MGB, Dkt. Nos. 15-1 & 15-2.
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unspecified property. He also claims he was denied the right to counsel, even though he also sues
his appointed public defender for unspecified reasons. Plaintiff alleges, "S/A Justin Wingo did
raid my home and arrest & seize me without search warrant or arrest warrant. Dwayne Lewis
unlawfully imprisoned myself without commitment warrant, Randy Demory & Phyall (Captain
and Director) aided & abetted this action." Plaintiff makes no specific factual allegations against
any other Defendants. For relief, Plaintiff seeks $7.5 million in damages and release from custody.
On March 3, 2017, the Magistrate Judge recommended summary dismissal without service
of process. Plaintiff has filed no objections to the Report and Recommendation.

II.

Legal Standard
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). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the 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 Where the plaintiff fails to file any specific objections, "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," see Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation marks omitted), and this Court is
not required to give any explanation for adopting the recommendation of the Magistrate Judge,
Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).

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III.

Discussion
As fully set forth by the Magistrate Judge in the Report and Recommendation, the

complaint is subject to summary dismissal for a great many reasons. Plaintiff names several
Defendants against whom he makes no specific factual allegations. Plaintiff claims his Fourth
Amendment rights were violated, but alleges no facts supporting that claim-the mere fact that he
was arrested for trafficking in heroin, without more, is insufficient to state a claim for a Fourth
Amendment violation. Plaintiff complains that his property was seized without stating what
property was seized; much less why South Carolina's post-deprivation remedies are inadequate.
Plaintiff cannot sue his own counsel under § 1983. Plaintiff is clearly attempting to interfere with
his pending state prosecution for trafficking in heroin, alleging that his "right to bail" has been
violated and demanding release from custody, but federal courts must abstain from interference
with state criminal proceedings. Younger v. Harris, 401 U.S. 37,44 (1971). Finally, the remedies
Plaintiff seeks are unavailable: Release from custody is not a remedy in a § 1983 action, Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973); and money damages for unconstitutional imprisonment
are unavailable until his conviction or sentence has been called into question-if the pending
proceedings result in a conviction and sentence, Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge (Dkt. No. 26) as the Order of the Court and DISMISSES WITHOUT

PREJUDICE the complaint.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
March li, 2017
Charleston, South Carolina
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