Greene v. Stirling et al
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION: The court Declines to Adopt the Magistrate Judge's Report and Recommendation (ECF No. 16 ). It is therefore ORDERED that Plaintiff's action (ECF No. 1 ) is recommitted to the Magistrate Judge for further pre-trial handling. IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 5/17/2016. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Christopher Greene, III,
)
)
Plaintiff,
)
)
v.
)
)
Bryan P. Stirling; Jerry B. Adger; Cecilia )
Reynolds; Angelica Brown; Vivian
)
McCall; Tonia Washington; Tonya Nelson; )
Sophia Richardson; Sara Adger; Ms. Smith; )
and Jason Summers,
)
)
Defendants.
)
____________________________________)
Civil Action No.: 5:16-cv-00587-JMC
ORDER AND OPINION
Plaintiff Christopher Greene (“Plaintiff”), proceeding pro se and in forma pauperis, seeks
relief pursuant to 42 U.S.C. § 1983. At the time of filing, Plaintiff was incarcerated at Evans
Correctional Institution, part of the South Carolina Department of Corrections (“SCDC”) prison
system. (ECF No. 1-1). However, it appears that Plaintiff has completed his sentence and has
since been released. (ECF No. 12). Plaintiff alleges that his constitutional rights were violated by
SCDC employees when he was convicted of a disciplinary action for refusing to attend an alcohol
treatment program imposed as a condition of parole. (ECF No. 1 at 3-8). Plaintiff further alleges
that he was wrongfully convicted of the disciplinary action because he never accepted the parole,
and as such, should not have been subject to its conditions. (Id.) As a result of the disciplinary
conviction, Plaintiff lost canteen privileges for 30 days, telephone privileges for 30 days, and 30
days of good-time credits. (ECF No. 12). Plaintiff seeks a declaratory judgment and damages in
the amount of $35,000.00. (ECF No. 1 at 9).
This matter is before the court pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the
court to dismiss civil actions filed in forma pauperis if they are frivolous or fail to state a claim
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upon which relief can be granted. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02, D.S.C., the matter was referred to United States Magistrate Kaymani West for a Report and
Recommendation. On April 14, 2016, the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending the court summarily dismiss the petition because Plaintiff’s claims are
only cognizable through a federal habeas petition, and not a § 1983 complaint. (ECF No. 16 at 35). In reaching her decision, the Magistrate Judge relied on a line of Supreme Court precedent
which holds that prisoners are not permitted to seek section 1983 relief for claims arising out of
their conviction and incarceration—unless their conviction or punishment has already been
invalidated in a previous proceeding—if the result of that relief would imply the invalidity of the
punishment imposed. See Wilkinson v. Dotson, 544 U.S. 74 (2005); Edwards v. Balisok, 520 U.S.
641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994); Wolf v. McDonnell, 418 U.S. 539 (1974).
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina.
recommendation to this court.
The Magistrate Judge makes only a
The recommendation has no presumptive weight.
The
responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1). Objections to a Report and Recommendation must
specifically identify portions of the Report and the basis for those objections. Fed. R. Civ. P. 72(b).
“[I]n the absence of a timely filed objection, a district court need not conduct a de novo review,
but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to
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accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Plaintiff was advised of his right to file objections to the Report. (ECF No. 16 at 6).
Plaintiff was required to file objections by April 14, 2016. To date, Plaintiff has not filed any
objections to the report. Accordingly, this court is required to review the Report of the Magistrate
Judge for clear error.
Based on this court’s review of the record, Plaintiff is no longer in the custody of the SCDC
for the sentence that is the subject of this litigation. Because he is no longer in custody, the analysis
in Heck v. Humphrey and its progeny, such as Wilkinson v. Dotson, is not applicable to Plaintiff.
Following its decision in Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court of the
United States issued an opinion in Spencer v. Kemna, 523 U.S. 1, in which the plurality held that
“a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the
unconstitutionality of a conviction or confinement without being bound to satisfy a favorabletermination requirement that it would be impossible as a matter of law for him to satisfy.” Spencer,
523 U.S. at 21 (J. Souter, concurring). Though the circuits are split on the issue, the United States
Court of Appeals for the Fourth Circuit has held a § 1983 claim is cognizable where a prisoner
seeks damages for past confinement because “a habeas ineligible former prisoner seeking redress
for denial of his most precious right—freedom—should [not] be left without access to a federal
court.” Wilson v. Johnson, 535 F.3d 262, 268 (4th Cir. 2008); but see Bishop v. County of Macon,
484 F. App’x. 753 (4th Cir. 2012) (unreported) (distinguishing its prior decision in Wilson to affirm
a district court’s dismissal of a § 1983 claim where appellant did not pursue habeas relief for a
thirty-six-month period, then waited for his sentence of probation to expire before bringing a §
1983 claim). Like the appellant in Wilson, Plaintiff sought redress of his grievances through
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SCDC’s grievance process.
Plaintiff received a final determination from the appropriate
authorities on October 27, 2015. (ECF No. 1 at 3). Unlike the appellant in Bishop v. County of
Macon who had a thirty-six-month period to pursue habeas relief, Plaintiff, like the appellant in
Wilson, only had four months to pursue habeas relief, and it is unlikely that the petition would
have been addressed prior to his release in March of 2016. Thus, even if Plaintiff had filed a
habeas petition, once Plaintiff was released from SCDC custody, Plaintiff was no longer entitled
to habeas relief. Accordingly, in this limited instance where Plaintiff’s ability to seek and receive
habeas relief was constrained by the short time remaining on his custodial sentence, this court finds
that requiring Plaintiff to have filed a habeas petition prior to asserting this § 1983 claim would
effectively leave Plaintiff without access to a federal court in order to seek redress for the alleged
violations by Defendants. Therefore, Plaintiff’s action should not be summarily dismissed based
on the grounds as stated in the Report.
Based on the foregoing, the court Declines to Adopt the Magistrate Judge’s Report and
Recommendation (ECF No. 16). It is therefore ORDERED that Plaintiff’s action (ECF No. 1) is
recommitted to the Magistrate Judge for further pre-trial handling.
IT IS SO ORDERED.
United States District Judge
May 17, 2016
Columbia, South Carolina
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