Howell v. Gustafson et al
ORDER RULING ON REPORT AND RECOMMENDATION: This Court adopts the Magistrate Judge's Report and Recommendation. (ECF No. 12 ). Thus, this action is dismissed without prejudice and without issuance and service of process.IT IS SO ORDERED. Signed by Honorable Joseph F Anderson, Jr. on 09/05/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Frederick L. Howell,
C/A No. 5:17-cv-01297-JFA
Richard H. Gustafson; Clarissa W. Joyner;
Alan M. Wilson; and Orangeburg County
Public Defenders Corp.,
The pro se Plaintiff, Frederick L. Howell, is an inmate at the Turbeville Correctional
Institution. He brings this action under 42 U.S.C. § 1983 contending that the Defendants violated
his constitutional rights.
After reviewing the pleadings, the Magistrate Judge assigned to this action1 prepared a
thorough Report and Recommendation (“Report”) sua sponte and opined that this case should be
dismissed without prejudice and without issuance and service of process. (ECF No. 12). The
Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.). 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. Mathews v. Weber, 423 U.S. 261 (1976). The Court is
charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objection is made, and the Court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
incorporates those facts and standards without a recitation. Plaintiff filed objections to the Report
on July 21, 2017. (ECF No. 15). Thus, this matter is ripe for review.
The 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 recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct
a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection
is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. &
Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the
Report of the Magistrate, this Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Plaintiff Howell’s objection addresses several of the Report’s conclusions. First, Plaintiff
Howell argues that Heck v. Humphrey, 512 U.S. 477 (1994) should be applied to each Defendant
because each alleged violation Howell listed in his complaint is “unique and separate.” (ECF No.
15 p. 2). The Magistrate Judge, however, correctly opined that under the United States Supreme
Court’s ruling in Heck, Plaintiff’s claim for damages and release from custody is barred 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 successfully
challenged. See Heck, 512 U.S. at 487. Moreover, as Plaintiff has not demonstrated that his
conviction has been reversed, expunged, or declared invalid by a state court, and no federal writ
has been issued, the action must be dismissed for failure to state a claim, and his claim for monetary
damages under § 1983 is barred by Heck.
Plaintiff Howell next argues that his imprisonment tolled the statute of limitations for his
§ 1985 and § 1983 claims, which would allow him to bring his claim in 2017, even though the
statute of limitations ran in 2013. (ECF No. 15 p. 3). Plaintiff cites Fricks v. Lewis, 26 S.C. 237
(1887), asserting that his imprisonment constitutes a disability and thus the statute of limitations
should have been tolled. However, imprisonment will not toll the statute of limitations because
S.C. Code Ann. § 15-3-40 was amended in 1996 to delete the tolling provision for imprisoned
persons. See Wright v. Oliver, 99 F.3d 1133 (4th Cir. 1996). Thus, Plaintiff Howell’s argument
Howell continues to argue that S.C. Code Ann. § 15-78-70 applies to his claims against
Orangeburg Public Defenders Corporation (“OPDC”). (ECF No. 15 p. 5). However, as the
Magistrate Judge correctly noted, OPDC does not constitute a “person” for purposes of the statute
and “thus cannot act under color of state law.” (ECF No. 12 p. 7). Howell also argues that S.C.
Code Ann. § 15-3-630 is applicable to his claim against OPDC. (ECF No. 15 p. 4). However, this
Section applies to “[a]ctions against architects, professional engineers or contractors” and thus has
no application to Howell’s case. Therefore, this argument is without merit.
Next, Howell argues that his allegations of conspiratorial action against Defendant Joyner
and state officials were made with sufficient specificity to suggest a meeting of the minds pursuant
to Sutton v. Calhoun, No. 86-6673, 1986 WL 18629 (4th Cir. Sept. 9, 1986). However, as the
Magistrate Judge noted, Howell has merely made a “naked assertion of a conspiracy without
supporting operative facts.” See Bishop v. Richardson, No. 88-6616, 1988 WL 76277, at *1 (4th
Cir. Jul. 21, 1988) (citing Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984); Fullman v.
Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)). Therefore, this argument is also unfounded.
Finally, Plaintiff Howell argues that his claim against Defendant Wilson should stand.
(ECF No. 15 p. 7). However, the Eleventh Amendment contains a prohibition against such suit.
See Fey v. Washington, No. 16-cv-03103-WJM-MEH, 2017 WL 1344451 (D. Colo. Apr. 12, 2017)
(citing Edelman v. Jordan, 415 U.S. 651, 662–63 (1974); Levy v. Kan. Dep't of Social & Rehab.
Servs., 789 F.3d 1164, 1168 (10th Cir. 2015). Therefore, as the Magistrate Judge pointed out, this
argument is also unfounded.
After carefully reviewing the applicable laws, the record in this case, the Report, and the
objection thereto, this Court finds the Magistrate Judge’s recommendation fairly and accurately
summarizes the facts and applies the correct principles of law. The Report is adopted and
incorporated herein by reference. Accordingly, this Court adopts the Magistrate Judge’s Report
and Recommendation. (ECF No. 12). Thus, this action is dismissed without prejudice and without
issuance and service of process.
IT IS SO ORDERED.
September 5, 2017
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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