Whitmore v. Ard et al

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATION for 15 Report and Recommendation. Complaint is dismissed without prejudice and without issuance of service of process. Signed by Honorable J Michelle Childs on 10/23/2012. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kenneth Whitmore,

)
)
Plaintiff,
)
)
v.
)
)
Jonathan Ard; James L. Goldsmith, Jr.;
)
Mitchell Byrd, Jr.; and Edward W. Miller, )
)
Defendants.
)
____________________________________)

Civil Action No.: 6-12-cv-01049-JMC
OPINION AND ORDER

This matter is now before the court for review of the Magistrate Judge’s Report
and Recommendation (“Report”) [Dkt. No. 15], filed on May 15, 2012, recommending
that Plaintiff Kenneth Whitmore’s (“Plaintiff”) Complaint [Dkt. No. 1] alleging various
causes of action under 42 U.S.C. § 1983 be dismissed without prejudice and without
issuance and service of process. The Report and Recommendation sets forth in detail the
relevant facts and legal standards on this matter, which the court incorporates herein
without a recitation.
STANDARD OF REVIEW
The Magistrate Judge’s Report and Recommendation is made in accordance with
28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The
Magistrate Judge makes only a recommendation to this court. The 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 is charged
with making a de novo determination of those portions of the Report and
Recommendation 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).
DISCUSSION
Plaintiff, an inmate serving a fifteen (15) year sentence for armed robbery,
brought suit under 42 U.S.C. § 1983 against the investigating police officer, the public
defender assigned to his case, the solicitor who prosecuted the case, and the trial judge
who heard the case, alleging all four conspired to maliciously prosecute and imprison
him. The Magistrate Judge recommended that Plaintiff’s complaint be dismissed without
prejudice.
Plaintiff timely filed objections [Dkt. No. 18] to the Magistrate Judge's Report.
Objections to the Report must be specific. Failure to file specific objections constitutes a
waiver of a party's right to further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Magistrate
Judge's Report and Recommendation, this court is not required to give any explanation
for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983).
Upon review of Plaintiff's objections, the court finds that his lengthy objections
are unspecific, unrelated to the dispositive portions of the Magistrate Judge’s Report and
merely restatements of his original claims. The court nevertheless briefly addresses
Plaintiff’s claims.
First, Plaintiff claims that Judge Miller violated his constitutional rights by
allowing a motions hearing to be held immediately before trial and by allowing a

meritless case to proceed. The Magistrate Judge recommended that Judge Miller be
summarily dismissed from the suit on the grounds of judicial immunity. Courts have
long recognized that judges sued in § 1983 actions are immune from liability for
exercising their judicial discretion unless they act in the absence of all jurisdiction.
Mireless v. Waco, 502 U.S. 9, 11 (1991). The acts about which Plaintiff complains are
clearly matters of judicial discretion. Further, Plaintiff fails to specifically challenge the
Magistrate Judge’s determination that Judge Miller is immune from suit. For this reason,
this court accepts the Magistrate Judge’s recommendation that Judge Miller be dismissed
from this suit.
Plaintiff also alleges that the prosecuting attorney, Mitchell Byrd, violated his
constitutional rights by obtaining an indictment against Plaintiff without presenting any
evidence to the grand jury, by charging Plaintiff with possessing a weapon even though
there was no evidence of one, and by failing to disclose to the jury that the witness
testifying against Plaintiff had allegedly committed perjury by not revealing his status as
an illegal immigrant. The Magistrate Judge recommended that Byrd be dismissed from
the suit on the grounds of prosecutorial immunity. Prosecutors enjoy absolute immunity
for actions taken while performing functions that are “intimately associated with the
judicial phase of the criminal process” though not for non-prosecutorial functions like
administrative or investigative tasks. See Van de Kamp v. Goldstein, 555 U.S. 335, 342,
(2009) (quoting Imbler v. Pachman, 424 U.S. 409, 430 (1976)). The actions taken by
Byrd about which Plaintiff complains are clearly associated with the judicial phase of the
criminal process.

Further, Plaintiff fails to challenge the Magistrate Judge’s

determination that Byrd is immune from suit. For this reason, the court accepts the

Magistrate Judge’s recommendation that Byrd be dismissed from this case.
Plaintiff also claims that his appointed public defender, James Goldsmith, violated
his constitutional rights by failing to effectively challenge the warrantless search of
Plaintiff’s home. The Magistrate Judge found that Plaintiff failed to state a claim under §
1983 because a public defender, even though appointed by the state, does not act under
the color of state law so long as he is performing his traditional functions as counsel to
the person he is representing.1 See Polk Cnty. v. Dodson, 454 U.S. 312 (1981). Plaintiff
fails to allege that Plaintiff was acting outside of his role as advocate, even if he believes
that counsel was inadequate. For this reason, the court accepts the Magistrate Judge’s
recommendation that Goldsmith be dismissed from this action.
Finally, Plaintiff claims that police officer Jonathan Ard is liable for violations of
his constitutional rights as a result of searching Plaintiff’s home without a warrant,
charging Plaintiff with having a weapon when there was no report of a weapon, and
making false statements in an affidavit as to the amount of money allegedly stolen in the
robbery.

The Magistrate Judge found Plaintiff’s claim were premature because to

recover under § 1983, the plaintiff must “prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87
(1994).

Nothing in the record suggests that Plaintiff has challenged these alleged

constitutional violations, much less succeeded in doing so. Therefore, the court accepts

1
  To state a claim under § 1983, a plaintiff must allege (1) that a right secured by the
Constitution or laws of the United States was violated, and (2) that the alleged violation
was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.
42, 48 (1988).

the Magistrate Judge’s recommendation that Plaintiff’s claim against Officer Ard be
dismissed.
CONCLUSION
For the following reasons, the court ACCEPTS the Magistrate Judge’s Report
and Recommendation [Dkt. No. 15] and DISMISSES Plaintiff’s Complaint [Dkt. No. 1]
without prejudice and without issuance and service of process.
IT IS SO ORDERED.

United States District Judge
October 23, 2012
Greenville, South Carolina