Green v. Horry County et al

Filing 12

ORDER overruling Plaintiff's objections, adopting the 7 Report and Recommendation as modified, and dismissing the action without prejudice and without issuance and service of process. Signed by Honorable R. Bryan Harwell on 9/29/2017. (bgoo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gregory Green,

)
)
Plaintiff,
)
)
v.
)
)
Horry County, Jimmy A.
)
Richardson, II, and Scott Hixon,
)
)
Defendants.
)
______________________________)

Civil Action No.: 4:17-cv-01304-RBH

ORDER

Plaintiff Gregory Green, a state prisoner proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983 against the above-captioned Defendants. See ECF No. 1. The matter is before the Court
for consideration of Plaintiff’s objections to the Report and Recommendation (“R & R”) of United
States Magistrate Judge Paige J. Gossett, who recommends summarily dismissing Plaintiff’s complaint.1
See ECF Nos. 7 & 9.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report

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The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.).

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 [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
Discussion2
In his § 1983 complaint, Plaintiff alleges that his due process rights were violated when he pled
guilty to a drug offense in state court, and that “this unconstitutional conviction was used to Plaintiff’s
detriment in a subsequent conviction.” ECF No. 1 at p. 14–15. He sues the assistant solicitor who
prosecuted him, as well as the solicitor and the county in which he pleaded guilty. Id. at pp. 2–3.
Plaintiff seeks monetary damages from Defendants “for the injuries sustained due to the
unconstitutional conviction,” namely the “five years of incarceration that he served from July 20, 2006
thru July 1, 2011.” Id. at pp. 5–6, 15. The Magistrate Judge recommends summarily dismissing
Plaintiff’s complaint because (1) the solicitors are shielded by absolute prosecutorial immunity, and (2)
the complaint fails to state a claim upon which relief can be granted. R & R at pp. 3–6.
Although Plaintiff lodges two objections to the R & R,3 see ECF No. 9, the Court finds
Plaintiff’s claims fail not only for the reasons set forth in the R & R but also for a simple reason not

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The R & R summarizes the factual and procedural background of this case, as well as the applicable legal
standards.

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Plaintiff challenges the Magistrate Judge’s (1) characterization of the manner by which he pleaded guilty
to the drug offense and (2) finding of prosecutorial immunity. See ECF No. 9 at pp. 1–4.

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discussed in the R & R—they are barred by the Supreme Court’s decision in Heck v. Humphrey, 512
U.S. 477 (1994). Heck bars Plaintiff’s claims because success on them would necessarily imply the
invalidity of his drug conviction and five-year prison sentence, which have not been overturned or
otherwise called into question. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005) (explaining that
under Heck and related cases, “a state prisoner’s § 1983 action is barred (absent prior invalidation)—no
matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state
conduct leading to conviction or internal prison proceedings)—if success in that action would
necessarily demonstrate the invalidity of confinement or its duration”); Edwards v. Balisok, 520 U.S.
641, 646 (1997) (extending Heck to civil rights actions that do not directly challenge confinement, but
instead contest procedures which necessarily imply unlawful confinement); Young v. Nickols, 413 F.3d
416, 417 (4th Cir. 2005) (“Heck . . . bars a prisoner’s § 1983 claim if the relief sought necessarily
implies the invalidity of his criminal judgment.”). Under Heck and its progeny, the Court cannot grant
Plaintiff the relief he seeks. See, e.g., Mayfield v. King, No. CA 0:10-1487-JFA-PJG, 2010 WL
4929124, at *1 (D.S.C. Nov. 30, 2010) (finding Heck barred Plaintiff’s § 1983 action alleging “that the
defendants have violated his due process rights and that he has been maliciously and falsely
imprisoned”). Accordingly, the Court modifies the R & R to reflect this additional reason for dismissal,
and overrules Plaintiff’s objections.4
Conclusion
For the foregoing reasons, the Court overrules Plaintiff’s objections, adopts the R & R [ECF No.

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The Court agrees with the Magistrate Judge’s findings that (1) the solicitors are shielded by absolute
prosecutorial immunity, and (2) the complaint fails to state a claim upon which relief can be granted. See generally
Safar v. Tingle, 859 F.3d 241, 248 (4th Cir. 2017) (“It is well settled that prosecutorial activities that are ‘intimately
associated with the judicial phase of the criminal process’ are absolutely immune from civil suit.” (quoting Imbler
v. Pachtman, 424 U.S. 409, 430 (1976))).

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7] as modified herein, and DISMISSES this action without prejudice and without issuance and service
of process.
IT IS SO ORDERED.

Florence, South Carolina
September 29, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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