Frierson v. Turner
ORDER RULING ON REPORT AND RECOMMENDATION: the Court adopts the Magistrate Judge's Report and Recommendation 16 . IT IS THEREFORE ORDERED that Plaintiff's complaint is DISMISSED without prejudice and without issuance of service of process. Signed by Honorable Mary G Lewis on 11/26/2013. (mcot, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Marcus Antonio Frierson,
RC Turner, DHO,
Civil Action No.: 5:13-966-MGL
ORDER AND OPINION
The matter is before the Court for review of the Report and Recommendation of
United States Magistrate Judge Kaymani D. West made in accordance with 28 U.S.C.
§ 636 and Local Rule 73.02(B)(2) D.S.C. and filed on July 2, 2013. Plaintiff Marcus Antonio
Frierson (“Plaintiff”) a state prisoner in the South Carolina Department of Corrections
proceeding pro se, brought this action on October 16, 2013, against Defendant RC Turner,
DHO, (“Defendant”) pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional
The Magistrate Judge has prepared a Report and Recommendation wherein she
suggests that Plaintiff’s complaint be dismissed without prejudice and without issuance and
service of process. (ECF No. 16). The Report and Recommendation sets forth in detail
the relevant facts and standards of law on this matter and the Court incorporates such
without recitation and without a hearing.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.
The responsibility to make a final
determination remains with this Court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The Court may
also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. The Court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made. The
plaintiff filed timely objections to the Magistrate Judge’s Report and Recommendation on
July 19, 2013
Plaintiff objects to the Magistrate Judge’s recommendation that this matter is subject
to summary dismissal. (ECF No. 21). Plaintiff asserts that he is not challenging the validity
of his conviction or the duration of his sentence but instead appears to assert that his due
process rights were violated due to Defendant’s alleged failure to provide Plaintiff with a 24hour notice prior to disciplinary hearing.
While it is true that disciplinary proceedings which implicate a protected liberty
interest demand due process, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d
935 (1974), the United States Supreme Court has also held that a state prisoner's claim for
damages is not cognizable under § 1983 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 previously invalidated. See Heck v.
Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The ruling in Heck
was extended to a prisoner's claim for damages regarding loss of good time credits in
Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). As Heck
applies in the instant matter, and Plaintiff has not shown that his institutional conviction and
sentence have been invalidated, the complaint's claims against Defendant are barred by the
holding in Heck and Edwards. Accordingly, Plaintiff’s objections are overruled.
The Court has thoroughly reviewed Plaintiff's complaint, the Magistrate Judge's
Report and Recommendation, objections to the Report and Recommendation, and
applicable law. For the reasons stated above and by the Magistrate Judge, the Court
hereby overrules Plaintiff's objections and adopts the Magistrate Judge's Report and
IT IS THEREFORE ORDERED that Plaintiff's complaint is DISMISSED without
prejudice and without issuance of service of process.
/s/Mary G. Lewis
United States District Judge
November 26, 2013
Spartanburg, South Carolina
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