Wise v. Moore et al

Filing 44

ORDER RULING ON REPORT AND RECOMMENDATION 41 . The Court adopts the Magistrate Judge's Report and Recommendation, (Dkt. No. 41), GRANTS the motion for summary judgment filed by Defendants Jordan Moore, Ms. Snyder, Stephen Claytor, and Michael McCall, (Dkt. No. 31), and DISMISSES this action with prejudice. Signed by Honorable Richard M Gergel on 4/19/2013. (kric, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Cedric Wise,
Plaintiff,
vs.
Jordan Moore; Ms. Snyder; Stephen
Claytor; and Michael McCall,
Defendants.

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No. 6: 12-cv-2091-RMG

ORDER

This matter comes before the Court on a motion for summary judgment, filed by Defendants
Jordan Moore, Ms. Snyder, Stephen Claytor, and Michael McCall. (Dkt. No. 31). Plaintiff Cedric
Wise, a state prisoner acting pro se, brings this action for denial of access to the courts pursuant to
42 U.S.C. § 1983. (Dkt. No.1). He alleges that Defendants, all staff members at the correctional
institution where he is housed, prevented him from timely filing his appeal of the state court order
dismissing his third petition for post-conviction relief ("PCR"). (Id).
Background

Pursuantt028 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC, this case was referred
to a United States Magistrate Judge for all pretrial proceedings. Defendants filed this motion for
summary judgment on January 11,2013. (Dkt. No. 31). In the motion, they asserted that the PCR
application which is the subject of Plaintiff s denial of access to the courts claim is successive; and
they argued that, as a result, Plaintiffhas failed to show an actual injury, a prerequisite for his claim.

(Id at 5). Plaintiff timely filed a response to the motion on February 13,2013. (Dkt. No. 39). The

Magistrate Judge issued an Report and Recommendation ("R&R") on March 28, 20l3,
recommending that Defendants' motion for summary judgment be granted because Plaintiff has
failed to show an actual injury. (Dkt. No. 41 at 8). Plaintiff did not file any objections to the R&R.
Legal Standard
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. 261,270-71 (1976). Thus, this 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). Nevertheless, in the absence ofspecific objections to the R&R, this Court need not give
any explanation for adopting the Magistrate Judge's analysis and recommendation. See Camby v.
Davis, 718 F.2d 198,200 (4th Cir. 1983).
The Court has before it Defendants' motion for summary judgment. Summary judgment is
appropriate ifa party "shows that there is no genuine dispute as to any material fact" and the movant
is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a). In other words, summary judgment
should be granted "only when it is clear that there is no dispute concerning either the facts of the
controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir. 1987).
In reviewing these pleadings, the Court is mindful ofPlaintiffs pro se status. This Court is
charged with liberally construing the pleadings ofapra 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 pro se plaintiffs clear failure to allege facts that set forth a

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cognizable claim, or that a court must assume the existence ofa genuine issue ofmaterial fact where
none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
Discussion
The Court has reviewed the Magistrate Judge's analysis in the Report and Recommendation
and concludes that he correctly applied the relevant law to the operative facts.
Plaintiff alleges that Defendants prevented him from timely filing his appeal of the state
court's dismissal ofhis third PCR application. In dismissing that PCR application on September 18,
2011, the state judge observed that Plaintiff was raising the same allegations he had "set forth in his
[two] previous PCR applications ... meeting the very definition ofa successive application." (Dkt.
No. 31-14 at 8). The state judge also found that Plaintiff had not offered any newly discovered
evidence that would excuse him from the untimely filing of his PCR application. (Jd. at 7). The
Court has reviewed the state court records and agrees with that assessment. Though the Court does
at this stage view the facts in a light most favorable to Plaintiff, Plaintiffs PCR application was, on
its face, a successive petition barred by the statute of limitations. As a result, the record leaves no
room for dispute that the alleged filing delay affected, at most, only a frivolous claim.
As the Supreme Court has explained, "[d]epriving someone ofa frivolous claim ... deprives
him of nothing at all ...." Lewis v. Casey, 518 U.S. 343,353 n.3 (1996). Having been deprived
of "nothing at all," id, Plaintiff has failed to show an interference with his rights that "resulted in
some sort ofactual injury," Joe v. Ozmint, No. 2:09-cv-585, 2008 WL 5076858, at * 10 (D.S.C. Nov.
21,2010). Accordingly, Defendants are entitled to judgment as a matter oflaw, and dismissal ofthis
claim with prejudice is appropriate. See Bing v. McCabe, No. 2:11-cv-3174, 2012 WL 6596814, at
*4 (D .S.C. Nov. 16, 2012) (recommending granting summary judgment to the defendants on a claim
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for denial of access to the courts where the alleged injury concerned obstruction in filing an appeal
of a successive state PCR petition), report and recommendation adopted by 2012 WL 6596996
(D.S.C. Dec. 18,2012).

Conclusion
For these reasons, the Court adopts the Magistrate Judge's Report and Recommendation,
(Dkt. No. 41), GRANTS the motion for summary judgment filed by Defendants Jordan Moore,
Ms. Snyder, Stephen Claytor, and Michael McCall, (Dkt. No. 31), and DISMISSES this action
with prejudice.

AND IT IS SO ORDERED.

Richard Mark Ger el
United States District Judge

Charleston, South Carolina
April {1, 2013

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