Boling v. United States of America

Filing 11

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report 7 and incorporates it by reference. Plaintiff's complaint is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED. Signed by Honorable Cameron McGowan Currie on 06/07/2017. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Oliver M. Boling,

Civil Action No. 4:17-cv-1097-CMC-TER
Plaintiff,

vs.

ORDER

United States of America,
Defendant.
This matter is before the court on Plaintiff’s complaint pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 1346, alleging the United States of America was negligent in failing to
properly compute his sentence and good time credit.1 ECF No. 1. In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02 (B)(2)(d), D.S.C., this matter was referred to United States
Magistrate Judge Thomas E. Rogers, III, for pre-trial proceedings and a Report and
Recommendation (“Report”) on dispositive issues. On May 8, 2017, the Magistrate Judge issued
a Report recommending that this matter be summarily dismissed without prejudice and without
issuance and service of process. ECF No. 7. The Magistrate Judge advised the parties of the
procedures and requirements for filing objections to the Report and the serious consequences if
they failed to do so. Plaintiff filed objections to the Report on May 22, 2017. ECF No. 9.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo

1

Plaintiff filed a previous habeas application regarding the computation of his sentence on
September 22, 2016. See Boling v. Warden FCI Estill, No. 4:16-cv-03227. It was dismissed
without prejudice as successive on December 28, 2016.

determination of any portion of the Report of the Magistrate Judge to which a specific objection
is made. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See
28 U.S.C. § 636(b).
Plaintiff objects “to the entire Magistrate Judge’s R&R.” ECF No. 9. First, Plaintiff
objects to the Magistrate Judge’s granting of his motion to proceed in forma pauperis (“IFP”) but
recommending his complaint be dismissed without service. As noted by the Magistrate Judge,
the court is statutorily required to “dismiss the case at any time if the court determines that – the
action or appeal is frivolous or malicious, fails to state a claim on which relief may be granted; or
seeks monetary relief against a defendant who is immune from such relief.”

28 U.S.C.

1915(e)(2)(B). Plaintiff argues “[i]t’s also clearly undisputable that the Magistrate Judge never
ruled that the Plaintiff’s claims were frivolous or else it would not have granted him a motion to
proceed in forma pauperis.” ECF No. 9 at 4. The Magistrate Judge granted Plaintiff’s motion to
proceed IFP so that his complaint could be filed without prepaying the filing fee: “A review of
the motion reveals that Plaintiff should be relieved of the obligation to prepay the full filing fee.
Plaintiff’s motion for leave to proceed in forma pauperis is granted . . .” ECF No. 5. Plaintiff’s
IFP status does not mean his complaint passes muster under § 1915(e)(2)(B).2

2

Plaintiff cites Danik v. Housing Authority of Baltimore City, 396 F. App’x 15 (4th Cir. 2010),
an unpublished case, in support of his argument against summary dismissal because his IFP
motion was granted. However, this case merely stands for the proposition the United States
Marshals Service is to effectuate service of process for IFP cases. Id. at 16 (citing Robinson v.
Footnote Continued . . .
2

Plaintiff next argues the Magistrate Judge erred by “erroneously recharacterizing
Plaintiff’s Federal Tort Claim Civil Action as a successive Section 2255 motion without
Plaintiff’s consent violates the Supreme Courts decision in Castro v. United States.” ECF No. 9
at 5. However, Plaintiff’s reliance on Castro is misplaced. Castro held notice was required to a
pro se criminal defendant when he files his first motion to vacate under 28 U.S.C. § 2255.
Castro v. United States, 540 U.S. 375, 383 (2003) (“The limitation [on the court’s
recharacterization powers] applies when a court recharacterizes a pro se litigant’s motion as a
first § 2255 motion.”).

It does not apply to a second or successive § 2255, as the filing

defendant would already be subject to the restrictions on second or successive motions under §
2255. See id. Further, the Magistrate Judge’s Report contains mere recommendations, which are
not binding on the District Court. Therefore, although not necessary for recharacterization in this
case, Plaintiff has had the opportunity to contest the recharacterization and provide further
information, and has in fact done so in his objections.
Finally, Plaintiff argues he should be allowed to proceed pursuant to the FTCA because
he seeks damages under the FTCA, not release from confinement. However, Heck clearly
disallows damages for allegedly unconstitutional imprisonment if the sentence has not been
declared invalid or called into question. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (“We
hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment,

Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (“In forma pauperis plaintiffs must rely on the district
court and the U.S. Marshals Service to effect service of process according to 28 U.S.C. §
1915.”).
3

or for other harm caused by actions whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
a determination, or called into question by a federal court’s issuance of a writ of habeas corpus,
28 U.S.C. § 2244.”).

As Plaintiff’s sentence remains valid despite many challenges from

Plaintiff, he may not proceed with his action for damages under the FTCA.3 Id. at 487 (“A claim
for damages bearing that relationship to a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.”).
After considering the record, the applicable law, the Report and Recommendation of the
Magistrate Judge and Plaintiff’s objections, the court agrees with the Report’s recommendation
the complaint be dismissed. Plaintiff has brought suit for damages under the Federal Tort Claims
Act; however, he challenges the computation of his sentence at the Bureau of Prisons. As noted
by the Magistrate Judge, the Supreme Court has disallowed damages for allegedly
unconstitutional conviction or imprisonment when the conviction or sentence has not been
reversed, expunged, declared invalid, or called into question. Heck, 512 U.S. at 486-87. For the
reasons above, the court adopts the Report and incorporates it by reference. Plaintiff’s complaint
is dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.

3

Plaintiff also argues his FTCA cause of action states a claim on which relief may be granted.
However, this argument is foreclosed by Heck for the reasons above.
4

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
June 7, 2017

5