McIntosh v. Taylor et al

Filing 24

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. This action is dismissed without prejudice and without issuance of service of process. Signed by Honorable Richard M Gergel on 8/2/2017.(cwhi, )

IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Patrick Mcintosh, a/k/a
Patrick R. Mcintosh,
Plaintiff,
v.

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Case No.: 2: 17-cv-376-RMG

ORDER AND OPINION

George Randall Taylor, Charleston County )
SC Sheriffs Department,
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Trident Technical College,
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Federal Bureau of Investigation,
Defendants.

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Plaintiff, proceeding pro se and in forma pauperis, filed this action under 42 U.S.C. §
1983 and/or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388, 397 (1971). This matter is before the Court on the Report and Recommendation ("R. & R.")
of the Magistrate Judge (Dkt. No. 15) recommending that the Court dismiss Plaintiffs complaint
without prejudice and without issuance of service of process. For the reasons set forth below, this
Court adopts the R. & R. as the order of the Court.
I.

Legal Standards
a. Pro Se Pleadings

This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.

Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the ex istence of a genuine issue of material fact where none

exists. See Weller v. Dep 't of Social Services, 901 F.2d 387 (4th Cir. 1990).

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b. Magistrate's Report and Recommendation
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. See Mathews v. Web er, 423 U.S. 261 , 270- 71 (1976). This Court is charged with
making a de nova 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)(l) .
Where the plaintiff fails to file any specific objections, "a district court need not conduct a de

nova 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 omitted).
II.

Discussion
The Magistrate Judge has adequately summarized Plaintiff s allegations in the R. & R. ,

so this Court has not repeated them in detail here. (Dkt. No. 15 at 1-5.) On January 20, 2015,
Plaintiff was charged in a superseding indictment with receiving firearms and ammunition while
under indictment for felony (Count One), making a threat on the life of the President of the
United States (Count Two), Threats to Law Enforcement (Count Three), and Threats by
Interstate Communication (Count Four). Following a bench trial, Plaintiff was found not guilty
of all counts by reason of insanity and was civilly committed to the custody of the Attorney
General .
Plaintiff filed this lawsuit seeking monetary damages for Defendants' alleged violations
of his constitutional rights in connection with the 2012 search of his house and what he

characterizes as the "malicious" prosecution that followed. The Magistrate has explained that

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this action is subject to summary dismissal because (1) Heck v. Humphrey, 512 U.S. 477 (1994)
bars Plaintiff's claims for damages that are predicated on his assertion that his civil detention is
improper; (2) Plaintiff failed to make any specific allegations against Defendant Trident
Technical College; (3) Defendant Charleston County Sheriff's Office is entitled to Eleventh
Amendment Immunity from a suit for monetary damages; (4) Plaintiff has remedies in tort under
South Carolina law to obtain relief for his allegedly stolen personal property (i.e., the alleged
illegal seizure of computers and a panda costume); and (5) to the extent Plaintiff is attempting to
assert tort claims against a Federal defendant, he has failed to allege that he has exhausted his
remedies under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Plaintiff has not filed any
objections to the R. & R. 1 This Court finds that the Magistrate has correctly applied the
controlling law to the facts of this case.

III.

Conclusion
For the reasons set forth above, this Court adopts the R. & R. as the order of the Court. This

action is dismissed without prejudice and without issuance of service of process.
AND IT IS SO ORDERED.

United States District Court Judge

C

,

2017
August
Charleston, South Carolina

1

The original service of the R. & R. was returned to this Court as undeliverable because Plaintiff had
changed addresses. On July 11, 2017, the R . & R. was re-mailed to Plaintiff at the Medical Center for
Federal Prisoners in Springfield, Missouri where he currently resides. The deadline for Plaintiff to file
Objections to the R. & R. was extended accordingly to July 26, 2017 plus an additional three days
because Plaintiff is proceeding prose. As of August 1, 2017, Plaintiff had not filed Objections to the R. &
R.(Dkt.Nos. 17, 18, 19,22.)

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