Coleman v. Kolb et al

Filing 41

ORDER AND OPINION adopting 31 Report and Recommendation of Magistrate Judge Bristow Marchant;denying 38 Motion to Stay; denying 38 Motion to Amend/Correct; denying 40 Motion to Amend/Correct; denying 36 Motion To File Notice of Appeal. This action is dismissed with prejudice. Signed by Honorable J Michelle Childs on 8/14/2015.(ssam, ) Modified to edit text on 8/14/2015 (ssam, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Rodney Coleman,

)
)
Plaintiff,
)
)
v.
)
)
Wade S. Kolb, Deborah T. Nielson, Eugene )
Williams, Judge Thomas W. Cooper, Mr. )
Mims,
)
)
Defendants.
)
____________________________________)

Civil Action No. 3:14-cv-02955-JMC

ORDER AND OPINION

Plaintiff Rodney Coleman (“Plaintiff”) filed this pro se action pursuant to 42 U.S.C. §
1983. Plaintiff alleges Defendants Wade S. Kolb, Sumter County Solicitor; Deborah T. Nielson,
Sumter County Assistant Solicitor; Eugene Williams, Sumter County Police Investigator; Judge
Thomas W. Cooper; and Tommy Mims, former Sumter County Sherriff (collectively
“Defendants”), violated his constitutional rights because he was never arrested and charged with
possession of a firearm during the commission of a violent crime, an offense for which he was
convicted. (ECF No. 1.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Bristow Marchant for pre-trial handling. On October 8, 2014,
the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court
summarily dismiss the action without issuance and service of process. (ECF No. 31.) This
review considers Plaintiff’s Motion and Demand to Object to Report and Recommendation
(“Objections”), filed October 23, 2014. (ECF No. 34.) The court also considers Plaintiff’s
Motion and Demand to File Notice of Appeal (ECF No. 36), Motion and Demand for Abeyance
and to Amend Original Complaint (ECF No. 38), and Motion to Amend (ECF No. 40).
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For the reasons set forth herein, the court ACCEPTS the Magistrate Judge’s Report. The
court thereby DISMISSES Plaintiff’s Complaint (ECF No. 1) and DENIES Plaintiffs’ Motions
(ECF Nos. 34, 36, 40).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the Magistrate Judge’s Report is accurate, and the court adopts this
summary as its own. (See ECF No. 31.) The court will only recite herein facts pertinent to the
analysis of Plaintiff’s Objections and Motions.
Plaintiff is currently incarcerated at MacDougall Correctional Institution within the South
Carolina Department of Corrections (“SCDC”), serving a 35-year sentence on a conviction of
murder and a 5-year sentence on a conviction for possession of a weapon during a violent crime,
to be served concurrently. See SCDC Incarcerated Inmate Search, http://public.doc.state.sc.us/
scdc-public/ (last visited Aug. 13, 2015); see also, Sumter County Third Judicial Circuit Public
Index,

http://publicindex.sccourts.org/Sumter/PublicIndex/PISearch.aspx,

Case

No.

1996GS4300573A (last visited Aug. 14, 2015).1
Plaintiff filed his Complaint on June 30, 2014, alleging the Sumter County “General
Session Court did not have jurisdiction to convict and sentence the plaintiff to 5 years for”
possession of a weapon during a violent crime because he was not arrested and charged with that
offense. (ECF No. 1 at 3-4.) Plaintiff also alleges prosecutorial misconduct, including the

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Under Federal Rule of Evidence 201(b), “The court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Postings on government websites are inherently authentic or selfauthenticating. See Williams v. Long, 585 F. Supp. 2d 279, 686-89, 688 n.4 (D. Md. 2008).
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withholding of Brady material2 and other evidence. (Id. at 4-7.) Plaintiff seeks a jury trial, $100
million “for 18 years of imprisonment, pain and suffering, lost wages from employment,
emotional stress and lost [sic] of home, property, and family,” “[a] declaration that the acts and
omissions described herein violated Plaintiff’s rights under the Constitution and laws of the
United States,” compensatory and punitive damages “in the amount of $250.00 per day spent in
prison due to lost wages,” and any additional relief the court deems proper. (Id. at 9-11.)
On October 8, 2014, the Magistrate Judge issued the Report, recommending the court
summarily dismiss the action. (ECF No. 31.) First, the Magistrate Judge found, “to the extent
that Plaintiff may be requesting release from incarceration, such relief may only be obtained in a
habeas [corpus] action.” (Id. at 3.) Further, the Magistrate Judge found, Plaintiff’s claims are
precluded under Heck v. Humphrey, 512 U.S. 477 (1994), which states that a prisoner’s claims
for damages are not cognizable under § 1983 if they would necessarily question the validity of
his conviction. (Id. at 3-5.)
In addition, the Magistrate Judge found that even if Plaintiff’s claims were not barred by
Heck, summary dismissal was appropriate for each Defendant.

For Defendants Mims and

Williams, “Plaintiff’s pleadings fail to provide any specific factual information to support a
claim that either of these Defendants violated his constitutional rights.” (Id. at 5.) Defendants
Kolb and Nielson are entitled to absolute prosecutorial immunity for activities performed as
officers of the court. (Id. at 6.) Defendant Cooper “is entitled to absolute judicial immunity
from suit for all actions taken in his judicial capacity.” (Id. at 7.)
Regarding Plaintiff’s request for a declaratory judgment, the Magistrate Judge found

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Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”)
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Plaintiff is not entitled to such relief “because he does not ask the Court to define the parties’
rights in the future.” (Id. at 8.)
Finally, regarding any claims Plaintiff may be asserting under state law, “[s]ince Plaintiff
has asserted no valid federal claim, this Court cannot exercise ‘supplemental’ jurisdiction over
Plaintiff’s state law claims, if any.” (Id. at 9.) Further, the Magistrate Judge stated, there is not
diversity of citizenship among the parties and thus the court cannot exercise diversity jurisdiction
over these matters. (Id.)
Plaintiff timely filed his Objections on October 23, 2014. (ECF No. 34.) In addition, on
February 19, 2015, Plaintiff filed a Motion and Demand to File Notice of Appeal (ECF No. 36),
followed by a Motion and Demand for Abeyance and to Amend Original Complaint (ECF No.
38) on May 19, 2015, and a Motion to Amend (ECF No. 40) on June 12, 2015.
II. LEGAL STANDARD AND ANALYSIS
A. Summary Dismissal
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

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responsibility to make a final determination remains with this court. See Matthews 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 to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n the absence of a timely

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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, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

If the plaintiff fails to properly object because the objections lack the requisite

specificity, then de novo review by the court is not required.
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
In his Objections, Plaintiff reasserts the arguments in his Complaint, but fails to
specifically address and refute the Magistrate Judge’s findings.

He offers no argument to

counter the Magistrate Judge’s findings that his claims are barred by Heck. Plaintiff objects only
to the finding that his claims against Defendants Kolb, Nielson, and Cooper are barred by
immunity via a general objection to the idea of “judicial error,” stating, “why can’t you folks be
held responsible for your mess ups[?]” (ECF No. 34 at 3.) Finally, Plaintiff makes a general
assertion that Defendants Mims and Williams “did violate [Plaintiff’s] Constitutional Rights…
and sat in the courtroom without upholding the law themselves, therefore let a wrongful
conviction be granted.” (Id. at 1.) He fails, however, to assert specific facts to allege any rights
violations by these Defendants. Plaintiff offers no objections to the Magistrate Judge’s findings

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regarding his request for declaratory relief, or regarding this court’s lack of jurisdiction over any
state law claims he may be asserting.
As such, Plaintiff’s Objections lack the requisite specificity required by Federal Rule of
Civil Procedure 72(b). Because Plaintiff failed to properly object to the Report with specificity,
the court does not need to conduct a de novo review and instead must “only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation.”
Diamond, 416 F.3d at 315. The court does not find clear error and accepts the Report by the
Magistrate Judge.
B. Motion and Demand to File Notice of Appeal
On February 19, 2015, Plaintiff filed a Motion and Demand to File Notice of Appeal,
with the understanding that the Magistrate Judge’s Report acted as a summary dismissal of
Plaintiff’s claim. (ECF No. 36.) In the Motion, Plaintiff stated that he was not informed of his
right to file notice of appeal within 30 days of the decision, and requested an extension to file
notice of appeal. (Id. at 1.)
As the Magistrate Judge’s Report is only a recommendation to the court, and not a final
action, Plaintiff’s Motion was premature. With no final decision to appeal, and with the time
period in which to appeal not at issue, Plaintiff’s requested relief is unnecessary, and is therefore
denied.
C. Motion and Demand for Abeyance and Motions to Amend
On May 19, 2015, Plaintiff filed a Motion and Demand for Abeyance and to Amend
Original Complaint (ECF No. 38), followed by a second Motion to Amend filed on June 12,
2015 (ECF No. 40).

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In the May Motion, having received no response to his Objections, Plaintiff requests the
court place the case in abeyance to allow him to amend his Complaint to add further details.
(ECF No. 38 at 1.) Plaintiff further requests a writ of mandamus “to expedite the litigation
process.” (Id.) Plaintiff lists a number of additional details with which he wishes to supplement
his Complaint, as well as additional Defendants he wishes to add. (Id. at 2-4.) Plaintiff reiterates
further details in his June Motion, attaching several documents pertaining to his arrest and
conviction. (ECF No. 40.)
A party may amend its pleading, even after the time to amend as a matter of course has
expired, when justice would require granting the request to amend. Fed. R. Civ. P. 15(a)(2). A
motion to amend should be denied only where it would be prejudicial, there has been bad faith,
or the amendment would be futile. Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.
2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)). The decision to
grant a party leave to amend rests within the sound discretion of the district court. Sandcrest
Outpatient Servs., P.A. v. Cumberland Cnty. Hosp. Sys., Inc., 853 F.2d 1139, 1148 (4th Cir.
1988). However, “it is well-settled that ‘[i]n the absence of any apparent or declared reason…
the leave sought should, as the rules require, be freely given.’” National Bank of Washington v.
Pearson, 863 F.2d 322, 327 (4th Cir. 1988) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Even with the additional facts Plaintiff alleges, the essence of his claim would necessarily
call into question the validity of his conviction. As such, even with the proposed amendments,
Plaintiff’s claim would be precluded by Heck. Therefore, the amendment would be futile and is
denied.
In addition, as the court has now taken action, Plaintiff’s request for a writ of mandamus
is unnecessary and is therefore denied as moot.

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III. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the
Magistrate Judge and the record in this case, the court ACCEPTS the Report of the Magistrate
Judge (ECF No. 31). It is therefore ordered that this action (ECF No. 1) is DISMISSED with
prejudice. It is further ordered that Plaintiff’s Motion and Demand to File Notice of Appeal
(ECF No. 36), Motion and Demand for Abeyance and to Amend Original Complaint (ECF No.
38), and Motion to Amend (ECF No. 40) are DENIED.
IT IS SO ORDERED.

United States District Judge
August 14, 2015
Columbia, South Carolina

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