Smith v. Miller et al
ORDER RULING ON REPORT AND RECOMMENDATION adopts 16 Report and Recommendation. The Complaint is DISMISSED WITHOUT PREJUDICE and without issuance and service of process. Signed by Honorable Mary Geiger Lewis on 5/18/2017. (gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROBERT DAVIS SMITH, JR.,
CHIEF KEN MILLER and DETECTIVE
TIMOTHY MICHAEL CONROY,
CIVIL ACTION NO. 6:17-00610-MGL
ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE
AND WITHOUT ISSUANCE AND SERVICE OF PROCESS
This case was filed as a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting the Complaint be dismissed without prejudice and without issuance and
service of process. The Report was made in accordance with 28 U.S.C. § 636 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 the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report 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 with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on May 1, 2017, and the Clerk of Court entered
Plaintiff’s objections to the Report on May 17, 2017. The Court has carefully considered the
objections, but holds them to be without merit. Therefore, it will enter judgment accordingly.
Under 28 U.S.C. § 636(b)(1), a district court is required to conduct a de novo review of those
portions of the Magistrate Judge’s Report to which a specific objection has been made. The Court
need not conduct a de novo review, however, “when a party makes general and conclusory
objections that do not direct the court to a specific error in the [Magistrate Judge’s] proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see Fed. R.
Civ. P. 72(b). As provided above, however, the Court need not—and will not—address any of
Plaintiff’s arguments that fail to point the Court to alleged specific errors the Magistrate Judge made
in the Report.
Construed liberally and in the light most favorable to Plaintiff, Plaintiff’s objections fail to
set forth any specific objection to the Report. Rather, Plaintiff’s objections constitute a recitation
of his allegations against Defendants. Nowhere in Plaintiff’s objections does he meaningfully
contest the Magistrate Judge’s recommendation his claims are premature because he is currently
serving a sentence for a conviction that has not yet been invalidated. As explained by the Magistrate
Judge, Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), as a judgment
in favor of Plaintiff would necessarily imply the invalidity of his conviction or sentence, and
Plaintiff has failed to demonstrate the conviction or sentence has already been invalidated.
Therefore, the Court will overrule Plaintiff’s objections.
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court the Complaint is DISMISSED WITHOUT PREJUDICE and without issuance and
service of process.
IT IS SO ORDERED.
Signed this 18th day of May, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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