Bellamy v. United States of America et al

Filing 21

ORDER RULING ON REPORT AND RECOMMENDATION: The court hereby overrules all of Plaintiff's objections and adopts and incorporates by reference the R & R of the Magistrate Judge 11 .The Court grants the motion to amend the complaint 15 but still finds that the Plaintiff's claims should be and are hereby DISMISSED without prejudice. The plaintiff's motion for summary judgment 17 is denied.IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 08/11/2015. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Claude Wendell Bellamy,

)
)
Plaintiff,
)
)
v.
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United States of America,
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Craig N. Ackley, John Ingram,
)
and Sam Davis,
)
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Defendants.
)
______________________________)

Civil Action No.: 4:15-cv-00803-RBH

ORDER

Plaintiff, a federal prisoner proceeding pro se, brought this action pursuant to 42 U.S.C. §
1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
This matter is now before the court with the Report and Recommendation (“R&R”) of United
States Magistrate Judge Thomas E. Rogers, III,1 filed on April 29, 2015 (ECF No. 11). In his R&R,
the Magistrate Judge recommended that the court should summarily dismiss the Complaint without
prejudice and without issuance and service of process. On May 7, 2015,2 Plaintiff timely filed his
Objections to the R & R. (ECF No. 13) On the same date, Plaintiff filed an “”Amended Complaint”,
which is construed by the Court as a motion to amend the complaint. (ECF No. 15) On May 29,
2015, Plaintiff filed a Motion for Summary Judgment. (ECF No. 17).
Background Facts
Plaintiff is a federal inmate currently incarcerated at Williamsburg FCI in Salters, South
1

This matter was referred to Magistrate Judge Rogers pursuant to 28 U.S.C. § 636 and Local Rule
73.02, D.S.C.

2

Filing date under Houston v. Lack, 487 U.S. 266 (1988) (stating that a prisoner’s pleading is deemed filed
at the moment of delivery to prison authorities for forwarding to district court).

Carolina.
In his Complaint (ECF No. 1), Plaintiff alleges that the defendants violated his due process
rights by a warrantless “seizure of his person” without probable cause at his home in Little River,
South Carolina on January 2, 1998 (seventeen years ago) and that he was later convicted in the
United States District Court of certain crimes without an evidentiary hearing. He states that he does
not challenge his conviction but that his lawsuit is based upon “improper and unlawful use of
policies and procedures”. Id., p. 5. For relief, Plaintiff requests the Court to “vacate the judgment
and conviction or in the alternative issue an order for Plaintiff’s immediate release from the B.O.P.”
Id., p. 6. He also requests actual and punitive damages.
In the plaintiff’s proposed amended complaint, he makes similar but more detailed factual
allegations and adds that the defendants violated his constitutional rights under the Fourth and
Eighth Amendments and the equal protection clause of the Fourteenth Amendment. He also alleges
that the defendants conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985.
Plaintiff “seeks redress under the Federal laws and appropriate relief therefrom.” (ECF No. 15, p.
19)
Standard of Review
The Magistrate Judge makes only a recommendation to the court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

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The court is obligated to conduct a de novo review of every portion of the Magistrate Judge’s
report to which objections have been filed. Id. However, the court need not conduct a de novo
review when a party makes only “general and conclusory objections that do not direct the court to
a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Discussion
In the R&R, the Magistrate Judge concluded that this claim is barred by Heck v. Humphrey,
512 U.S. 477 (1994). See R & R at 5-6. The Magistrate Judge also found that the claim against the
United States should be dismissed on the basis that it is immune from suit.
Under Heck, “when a . . . prisoner seeks damages in a suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” Id. at 487. The Magistrate Judge
concluded in the R & R that “[b]ecause Plaintiff has not been successful in having his convictions
set aside by way of appeal, habeas corpus, or otherwise, and because Plaintiff’s allegations of
improper activity by the various law enforcement officers if true, would necessarily invalidate his
conviction, he cannot sue any of the named Defendants based on their involvement in his
prosecution and ultimate conviction.” R & R at 6.
Plaintiff first objects to the dismissal of his claims under Heck on the basis that Heck requires
a “close factual examination of the underlying conviction” and that the Magistrate Judge failed to make

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factual findings regarding whether a seizure occurred, whether a probable cause determination occurred
in reference to the search, whether due process was violated during the search, or if an evidentiary
hearing was held. However, the Magistrate Judge did recite the background of the underlying criminal
convictions by taking judicial notice of court records from the plaintiff’s criminal and habeas
proceedings. He also specifically noted that Plaintiff did not challenge on appeal “the consensual
nature of the search.” (R&R, ECF No. 11, p. 4) No additional factual findings were necessary where
the magistrate recommended dismissal of the case under Heck.
Plaintiff also asserts that Heck does not apply because he “does not challenge or attack the
current conviction” but rather the “defendants’ improper and unlawful use of the practices, policy and
procedures (or the lack thereof) that were employed against this Plaintiff with respect to the mandated
practices.” (ECF No. 13, p. 1-2.) Plaintiff states that he is withdrawing the “language in his initial
complaint’s conclusion”, which requests that the conviction and sentence be vacated and that he be
immediately released.
Even considering the withdrawal of the language requesting that the conviction and sentence
be vacated, and considering the allegations in the plaintiff’s proposed amended complaint, this matter
must be dismissed pursuant to Heck. The Fourth Circuit found in Bellamy’s direct appeal that the
search was consensual. Officers have the authority to detain occupants of premises during a search
pursuant to a warrant and during a consensual search. See Michigan v. Summers, 452 U.S. 692, 705
(1981); United States v. Hernandez-Hernandez, 327 F.3d 703, 706 (8th Cir. 2003). This is justified by
the interest of law enforcement officers in preventing flight if incriminating evidence is found and also
in minimizing the risk of harm to the officers. Summers, 452 U.S. at 702-703. Detention of the
occupants during a search also facilitates the “orderly completion of the search”. Id. at 703. In

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addition, the order denying Plaintiff’s motion pursuant to 28 U.S.C. Section 2255 states: “The
lawfulness of the search and seizure were raised both in a motion to suppress in the district court and
on appeal in the Fourth Circuit Court of Appeals, and both courts ruled against his arguments.”
Bellamy v. United States, No. 7:99-cr-49-1-F, No. 7:03-cv-24-F , at 3 (E.D.N.C. February 3,
2009)(emphasis added). Therefore, the plaintiff’s claims are barred by Heck.3
Conclusion
The court has thoroughly reviewed the entire record, including the R & R and objections, and
applicable law. For the reasons stated above and by the Magistrate Judge4, the court hereby overrules
all of Plaintiff’s objections and adopts and incorporates by reference the R & R of the Magistrate Judge.
The Court grants the motion to amend the complaint but still finds that the Plaintiff’s claims should be
and are hereby DISMISSED without prejudice. The plaintiff’s motion for summary judgment is
denied.
IT IS SO ORDERED.

s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
August 11, 2015

3

It would certainly seem obvious that the claims would also be barred by the statute of limitations where the claims
arose over seventeen years ago.
4

The plaintiff has not objected to the Magistrate Judge’s recommendation that the United States should be
dismissed on the basis that it is immune from suit.

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