Wilder v. Brooks et al

Filing 17

ORDER ADOPTING THE REPORT AND RECOMMENDATION, denying plaintiff's motion for a preliminary injunction and dismissing this action without prejudice and without issuance and service of process. The case shall be deemed a "strike" for purposes of 1915(g), for 8 Report and Recommendations, 3 Motion for Preliminary Injunction, Motion for TRO filed by Samuel Anthony Wilder. Signed by Honorable Margaret B Seymour on February 3, 2009. (kbos)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

) ) C/A No. 3:08-3089-MBS Plaintiff, ) ) v s. ) ) Charles T. Brooks III; Judge Markley R. ) ORDER D e n n i s , Jr.; Donald J. Zelenka; ) Lo n e t t a B. Brawley, all in their ) in d iv i d u a l capacities, ) ) D e fe n d a n t s . ) ____________________________________) P la in tiff Samuel Anthony Wilder is an inmate in custody of the South Carolina Department o f Corrections (SCDC). Plaintiff, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, a l l e gi n g that his constitutional rights were violated prior to a hearing on his application for postc o n v ic tio n relief (PCR). Defendant Charles T. Brook III was Plaintiff's PCR counsel. Defendant J u d g e Markley R. Dennis (properly R. Markley Dennis, Jr.) is a judge of the South Carolina Circuit C o u r t. Defendant Donald J. Zelenka is an Assistant Deputy Attorney General of the State of South C a ro lin a . Defendant Lonetta B. Brawley is a legal assistant to Defendant Zelenka. Plaintiff alleges that his PCR counsel conspired with Judge Dennis to deny him funds for an e x p e rt to review crime scene evidence. Plaintiff also alleges that Defendant Brawley and Defendant Z e le n k a conspired to send a letter to the Solicitor in the county where Plaintiff's PCR was pending, o s t e n s i b l y to negatively affect Plaintiff's pending PCR application. Plaintiff contends that these acts v i o l a t e d his rights to equal protection and due process. Plaintiff seeks damages and moves for a p re lim i n a ry injunction compelling Defendants to perform their duties under the Constitution.

S a m u e l Anthony Wilder, #258295,

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was r e fe r r e d to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. The Magistrate J u d ge reviewed the complaint pursuant to 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison Litiga tio n Reform Act of 1996. On October 6, 2008, the Magistrate Judge issued a Report and R e c o m m e n d a tio n in which he found that Defendant Dennis is entitled to judicial immunity; that D e fe n d a n ts Zelenka and Brawley are entitled to prosecutorial immunity; and that Defendant Brooks is not a state actor for purposes of § 1983. Accordingly, the Magistrate Judge recommended that the c a s e be summarily dismissed and that Plaintiff's motion for preliminary injunction be denied. The M a gis tra te Judge also recommended that the within action be deemed a "strike" for purposes of the " t h r e e strikes" rule of 28 U.S.C. § 1915(g) because Plaintiff seeks damages from three Defendants w h o are immune and the case is otherwise frivolous. See 28 U.S.C. § 1915(A)(b)(2). Plaintiff filed o b je c tio n s to the Report and Recommendation on November 12, 2008. Plaintiff also filed on N o v e m b e r 12, 2008 an amended memorandum in support of his motion for preliminary injunction. T h e Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The district court need not conduct a de novo review when a party makes only general a n d conclusory objections that do not direct the court to a specific error in the Magistrate Judge's p r o p o s e d findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).

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P la in tiff's objections largely recite the allegations of the complaint and assert that the reasons u n d erlyin g Defendants' alleged wrongful conduct will be known when Defendants answer the c o m p l a in t . Plaintiff also asserts that the Report and Recommendation includes some factual errors. F o r example, Plaintiff's asserts that the motion for expert fees came before Judge Dennis, but that t h e PCR hearing was held before Judge John C. Few. Plaintiff also provides a copy of the letter in is s u e from the Office of the Attorney General, which reveals that the letter was in reference to the d is m i s s a l of Plaintiff's direct appeal. The letter did not take a position regarding Plaintiff's motion fo r expert fees, as set forth in the Report.1 Although the court recognizes the Report and Recommendations may contain some factual in a c c u ra c ie s , these do not undermine the reasoning of the Magistrate Judge regarding judicial and p ro s e c u to ria l immunity as well as the need for a defendant be a "state actor" for purposes of § 1983. A c co rd in gly, the court concurs in the recommendation of the Magistrate Judge. Plaintiff's motion fo r a preliminary injunction (Entry 3) is denied. The within action is summarily dismissed without p re ju d ic e and without issuance and service of process. The case shall be deemed a "strike" for p u r p o s e s of § 1915(g). I T IS SO ORDERED. / s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina F e b ru a ry 3, 2009.

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The court notes that some of this information was not discernable from the record before the Magistrate Judge. 3

N O T I C E OF RIGHT TO APPEAL P l a i n tif f is hereby notified that he has the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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