Dais v. Huggins et al

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 15 Report and Recommendations, dismissing the action without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 04/21/2011. (bshr, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Norman T. Dais,

)
)
Plaintiff,
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v.
)
)
Melanie Huggins, Horry County Clerk of
)
Court; Ms. Dixie Cox Enbank, Horry County
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Court Reporter; and Alfred W. Bethea, Jr.,
)
)
Defendants.
)
_______________________________________)

C/A No.4:10-2695-JFA-BHH

ORDER

The pro se plaintiff, Norman T. Dais, brings this action pursuant to 42 U.S.C. § 1983.1
He is an inmate at the South Carolina Department of Corrections. The plaintiff contends that
the Horry County Clerk’s Office failed to appoint him counsel in violation of his state and
constitutional rights. He also alleges that defendant Huggins and Enbank committed fraud
upon the court by introducing a false affidavit into his state court file and that defendant
Bethea was complicit in this “alteration” of his public record. He seeks a reopening of his
1986 state court criminal case based upon these alleged violations of his Sixth Amendment
rights.
The Magistrate Judge assigned to this action 2 has prepared a thorough Report and
1

The plaintiff has filed this action in forma pauperis under 28 U.S.C. § 1915.

2

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,

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Recommendation and opines that the complaint should be summarily dismissed. The Report
sets forth in detail the relevant facts and standards of law on this matter, and the court
incorporates such without a recitation.
The plaintiff was advised of his right to file objections to the Report and
Recommendation. He filed timely objections which this court has reviewed de novo.
The Magistrate Judge opines that under the United States Supreme Court’s ruling in
Heck v. Humphrey, 512 U.S. 477 (1994), plaintiff’s claim for damages is barred where
success of the action would implicitly question the validity of the conviction or duration of
the sentence, unless the prisoner can demonstrate that the conviction or sentence has been
successfully challenged. Moreover, as plaintiff has not demonstrated that his conviction has
been reversed, expunged, or declared invalid by a state court, and no federal writ has been
issued, the action must be dismissed for failure to state a claim and his claim for monetary
damages under § 1983 is barred by Heck.
In his one-page objection to the Report, plaintiff contends that this action is for
damages “occasioned by the defendant’s knowing ‘falsification of plaintiff’s court records’”
and that this action is a separate and distinct tort from his criminal conviction. He also notes
and that the damages he seeks by this action are to have his criminal conviction set aside for
lack of counsel. Regardless, his complaint is still barred by Heck. If this court were to find
that the plaintiff’s due process rights were violated, as he alleges, then such a finding might

or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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invalidate the underlying conviction. If, on the other hand, plaintiff’s conviction was
declared invalid, then at that point he would be free to seek monetary or other damages.
After a careful review of the record, the applicable law, the Report and
Recommendation, and the plaintiff’s objections thereto, the court finds the Magistrate
Judge’s recommendation to be proper and incorporates the Report herein by reference.
Accordingly, this action is dismissed without prejudice and without issuance and service of
process.
IT IS SO ORDERED.

April 21, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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