Ham v. Sly et al

Filing 101

ORDER Accepting in Part and Rejecting in Part 16 Report and Recommendation, and DISMISSING with prejudice Defendants Darlington County Sheriff's Office, Calvin Jackson, Tim Robertson, John McLeod, Jay Hodge, Sherrie Baugh, Will Rogers, and Kernard Redmond. Signed by Honorable J Michelle Childs on 2/25/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Angelo Ham,

)
)
Plaintiff,
)
v.
)
)
James Sly; Assistant Warden Nolan;
)
Warden McCall; John J. Brooks; James
)
C. Dean; Bruce Oberman; Cpt. Commander; )
Francis Bowman; Jack Brown; Darrell Cain; )
Ms. Johnson; Darlington County Sheriff’s )
Office; Calvin Jackson; Tim Robertson;
)
John McLeod; Jay Hodge; Sherrie Baugh; )
Will Rogers; Kernard Redmond; Warden
)
Anthony Padula, LCI Warden; Tonya
)
Hancock, Commissary Staff; Ms. Canty,
)
Commissary Staff; Jason Davis, SMU Lt.; )
Franklin Richardson, SMU Lt.; and Lesia
)
Johnson, LCI IGC,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 6:12-cv-02998-JMC
ORDER AND OPINION

This matter is now before the court upon the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 16), filed January 7, 2013, recommending the court
dismiss pro se Plaintiff Angelo Ham’s (“Plaintiff”) 42 U.S.C. § 1983 claim against Defendants
Darlington County Sheriff’s Office, Calvin Jackson, Tim Robertson, John McLeod, Jay Hodge,
Sherrie Baugh, Will Rogers, and Kernard Redmond (collectively referred to as “the Darlington
County Defendants”). (ECF Nos. 1, 101). In his claim, Plaintiff alleges he was illegally arrested
in violation of his Fourth Amendment rights. Id. Plaintiff has filed his complaint pursuant to the

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On November 13, 2012, Plaintiff filed the Amended Complaint (ECF No. 10), which the court
now takes into consideration.

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in forma pauperis statute, 28 U.S.C. § 1915. (ECF No. 15). For the reasons stated herein, the
court ACCEPTS IN PART and REJECTS IN PART the magistrate judge’s Report and
DISMISSES with prejudice and without issuance and service of process Plaintiff’s claims
against the Darlington County Defendants.2
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the magistrate judge’s Report is accurate, and the court adopts this
summary as its own. However, a brief recitation of the background in this case is warranted.
The court construes Plaintiff’s argument to contend that Defendants violated his Fourth
Amendment rights by illegally arresting him. (ECF No. 1 at 2). Plaintiff alleges a crime was
committed on September 9, 20043 for which he was arrested without probable cause and held
without an arrest warrant until July 19, 2005. (ECF No. 1 at 5). Plaintiff seeks monetary
damages as well as declaratory relief. Id. at 6. Upon review, the magistrate judge found that
Plaintiff’s Fourth Amendment claim was barred under Heck v. Humphrey, 512 U.S. 477 (1997).
Heck held that in order to recover damages for an allegedly unconstitutional conviction or
imprisonment, a plaintiff must prove that his conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal, or called into question
by a federal court’s issuance of a writ of habeas corpus. Id. at 486-87. Thus, when a state
prisoner seeks damages in a § 1983 suit, the complaint must be dismissed unless the plaintiff can

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As part of this Report, the magistrate judge found the remaining Defendants should be served.
(ECF No. 16 at 9–10). After accepting service, these Defendants moved for summary judgment
(ECF No. 91) and the magistrate judge issued a second Report and Recommendation (ECF No.
97) responding to Defendants’ motion. This court will issue a subsequent order addressing the
second Report and Recommendation.
3
The court notes that the South Carolina Department of Corrections lists the start date for
Plaintiff’s incarceration as September 10, 2006. See South Carolina Department of Corrections,
Incarcerated Inmate Search (last visited Feb. 25, 2014), http://public.doc.state.sc.us/scdc-public/
(enter “00315014” for “SCDC ID” and select “submit”; then select “Ham, Angelo”).
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demonstrate that the conviction or sentence has already been invalidated. Id. The magistrate
judge found that Plaintiff has not been successful in having his conviction set aside and asserts
allegations that if proven true would invalidate this conviction. Therefore, the Report concluded
Plaintiff’s claim was barred. (ECF No. 16 at 8–9). Plaintiff timely filed objections to the Report
asserting that entering judgment in his favor would not invalidate or set aside his underlying
conviction. (ECF No. 20 at 1).
STANDARD OF REVIEW
The magistrate judge’s Report is made is 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 Matthews 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. § 63(b)(1).

Failure to file specific

objections constitutes a waiver of a party’s right to further judicial review, including appellate
review, if the district judge accepts the recommendation. 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, 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).
DISCUSSION
The in forma pauperis statute authorizes the district court to dismiss a case if it is
satisfied that the action is frivolous, fails to state a claim on which relief may be granted, or seeks

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monetary relief against a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2)(B)(i-iii). As Plaintiff is a pro se litigant, the court is required to liberally construe his
arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those
arguments that, under the mandated liberal construction, it has reasonably found to state a claim.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
The court recognizes that the magistrate judge concluded Heck barred Plaintiff’s claim.
Notwithstanding this recommendation, upon independent review, this court holds Plaintiff’s
claim is duplicative of his previously dismissed § 1983 action, Ham v. Darlington Cnty. Sheriff's
Office, 4:11-CV-1150-JMC, 2012 WL 2178693 (D.S.C. June 14, 2012) aff'd sub nom. Ham v.
Darlington Cnty. Sheriff’s Office, 478 F. App'x 767 (4th Cir. 2012).
A district court shall dismiss an action at any time if it determines that the action is
frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B)(i). District courts are not required to
entertain duplicative or redundant lawsuits and may dismiss such suits as frivolous pursuant to §
1915(e). Cottle v. Bell, 229 F.3d 1142, 1142 (4th Cir. 2000) (citing Aziz v. Burrows, 976 F.2d
1158, 1158 (8th Cir. 1992)). Generally, a lawsuit is duplicative if one of the parties, issues, or
the relief sought does not significantly differ between the two suits. Id. (citing I.A. Durbin, Inc.
v. Jefferson Nat’l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986)).
In Ham v. Darlington Cnty. Sheriff’s Office, Plaintiff filed a complaint on May 12, 2011,
alleging Darlington County Sheriff’s Office, Calvin Jackson, Tim Robertson, John McLeod, Jay
Hodge, Sherrie Baugh, Will Rogers, and Kernard Redmond, violated his Fourth Amendment
rights under § 1983. Plaintiff claimed his rights were violated because he was arrested without a
warrant and not issued an arrest warrant until ten months after his incarceration. 2012 WL
2178693. The undersigned dismissed the case without prejudice upon the recommendation of

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the magistrate judge. Id. Plaintiff appealed to the Fourth Circuit. Ham v. Darlington Cnty.
Sheriff’s Office, No. 12-7103 (4th Cir. 2012). Upon review, the Fourth Circuit affirmed the
district court’s finding. Id.
Plaintiff’s claim in Ham v. Darlington Cnty. Sheriff’s Office is duplicative of the claim in
the instant action as the same Defendants are named, identical issues are raised, and similar
remedies are sought. Therefore, the dismissal of the Darlington County Defendants is warranted
and Plaintiff’s claim against them is dismissed with prejudice.4
CONCLUSION
Based on the aforementioned reasons and after a thorough review of the Report and the
record in this case, the court ACCEPTS IN PART and REJECTS IN PART the magistrate
judge’s Report and Recommendation (ECF No. 16) and DISMISSES with prejudice Defendants
Darlington County Sheriff’s Office, Calvin Jackson, Tim Robertson, John McLeod, Jay Hodge,
Sherrie Baugh, Will Rogers, and Kernard Redmond.
IT IS SO ORDERED.

United States District Judge
February 25, 2014
Greenville, South Carolina

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The court rejects the magistrate judge’s recommendation to dismiss this action without
prejudice.
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