Charley v. Williams
ORDER RULING ON REPORT AND RECOMMENDATION 9 . The Court overrules Plaintiffs objections, and adopts and incorporates by reference the Magistrate Judges Report. Accordingly, this action is DISMISSED without prejudice. Signed by Honorable Bruce Howe Hendricks on 2/9/17. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Timothy Leon Charley,
Civil Action No.: 5:16-3901-BHH
ORDER AND OPINION
Plaintiff Timothy Leon Charley (“Plantiff”), proceeding pro se and in forma pauperis,
filed this action pursuant to 42 U.S.C. § 1983. Plaintiff has brought suit alleging his
constitutional rights were violated, and is seeking monetary and punitive damages, an
apology, and any other relief the court deems proper. (ECF No. 1.) This matter is before
the Court for review of the Report and Recommendation (“Report”) of United States
Magistrate Judge Kevin F. McDonald made in accordance with 28 U.S.C. § 636(b) and
Local Rule 73.02 for the District of South Carolina.
On January 4, 2017, the Magistrate Judge issued a Report recommending that this
case be dismissed without prejudice. (ECF No. 9.) Plaintiff filed objections (ECF No. 17)
to the Report on January 17, 2017.
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight. The responsibility for making a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
Court must make a de novo determination of those portions of the Report, or specified
proposed findings or recommendations to which specific objection is made. 28 U.S.C. §
636(b)(1)(C). The Court may accept, reject, or modify, in whole or in part, the Report or
may recommit the matter to the Magistrate Judge with instructions. Id. In 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 accept the
recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005). De novo review is also “unnecessary in . . . situations when a party makes 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.
In reviewing these pleadings, the Court is mindful of the plaintiff’s pro se status. This
Court is charged with liberally construing the pleadings of a pro se litigant. See, e.g.,
De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal
construction does not mean, however, that the Court can ignore a plaintiff’s clear failure to
allege facts that set forth a cognizable claim, or that the Court must assume the existence
of a genuine issue of material fact where none exists. See United States v. Wilson, 699
F.3d 789, 797 (4th Cir. 2012).
Plaintiff filed objections (ECF No. 17) to the Report, which the Court has carefully
reviewed.1 Plaintiff specifically objects to the Magistrate Judge’s finding that Plaintiff failed
to plead a cognizable § 1983 claim because in order to do so a plaintiff must demonstrate
both that he was deprived of a federal right and that the person depriving that right did so
under color of state law. (Id. at 2.) Plaintiff insists that he was deprived of his right to file a
petition for a writ of habeas corpus, and that the person depriving him was acting under
color of state law, because his appeal from a State Circuit Court order denying and
dismissing his third application for post-conviction relief was dismissed by the Supreme
Court of South Carolina. (Id. at 2-3; ECF No. 17-1.) Plaintiff’s objections seek to bolster the
As always, the Court says only what is necessary to address Petitioner’s objections against the
already meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by
specific reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.
permissibility of his § 1983 claim, and apparently add a new legal theory that his
constitutional rights have been violated because the State Courts’ refused to consider his
third PCR application. All of this has nothing to do with the reasons why Magistrate Judge
McDonald recommended that Plaintiff’s claims be dismissed.
The Court finds that the Report fairly and accurately summarizes the facts and
applies the correct principles of law, and the Court agrees with the analysis of the
Magistrate Judge. Plaintiff has not stated a cognizable § 1983 claim pursuant to the U.S.
Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994), because he is
seeking to recover damages for allegedly unconstitutional conviction, imprisonment, or
other harm whose unlawfulness would render his conviction or imprisonment invalid,
without having first shown that his conviction or sentence has been invalidated. Id. at 48687. The case that Plaintiff cites for the proposition that Heck does not apply here, Johnson
v. Freeburn, 29 F. Supp. 2d 764 (E.D. Mich. 1998) (see ECF No. 17 at 2-3), is entirely
inapplicable to the facts and claims at issue, and merits no further discussion.
For the reasons stated above and by the Magistrate Judge, and after de novo
review, the Court overrules Plaintiff’s objections, and adopts and incorporates by reference
the Magistrate Judge’s Report. Accordingly, this action is DISMISSED without prejudice.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
February 9, 2017
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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