Sullivan v. McMaster et al

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATION 12 . The R & R is ADOPTED as the order of the Courtand Plaintiffs complaint is DENIED WITHOUT PREJUDICE. Signed by Honorable Richard M Gergel on 8/6/2018. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

David Farrell Sullivan,
Plaintiff,
V.

Henry D. McMaster, Harold W.
Gowdy, III, Hope Blackley,
J. Durham Cole, State of
South Carolina, and Barry Barnette,
Defendants.
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Civil Action No. 6:18-1425-RMG

ORDER AND OPINION

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Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
(Dkt. No. 12) recommending that Plaintiffs Complaint (Dkt. No. 1) be dismissed without
prejudice. For the reasons set forth below, the Court adopts the R & R as the order of the Court,
and dismisses the Complaint without prejudice.
I.

Background

Plaintiff David Farrell Sullivan alleges that Defendants, all state and county officials,
violated his civil rights under 42 U.S.C. § 1983 . Specifically, Plaintiff alleges that defendants
denied him a "fundamental fair trial," that his counsel was "ineffective," and that he was deprived
a "timely held P.C.R. [post-conviction relief] hearing." (Dkt. No. 1-2 at 16.) Plaintiff is no longer
in custody. Plaintiffs seeks a new trial or, alternatively, asks the court to overturn his "unlawful
conviction." (Dkt. No. 1-2 at 7.) The Magistrate Judge recommended that both the Plaintiffs
claims regarding his trial and post-conviction relief be dismissed without prejudice. (Dkt. No. 12.)
Plaintiff filed timely objections. (Dkt. No. 15.)

II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court that has no presumptive

weight. The responsibility to make a final determination remains with the Court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The 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)(l). This
Court is charged with making a de novo determination of those portions of the R & R to which
specific objection is made. Fed. R. Civ. P. 72(b)(2). Where the plaintiff fails to file any specific
objections, "a district court need not conduct a de novo review, but instead must only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation."
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation omitted).
Plaintiff filed Objections to the R & R, and therefore his complaint is reviewed de novo.

III.

Discussion
A.

Unlawful Conviction

The Court agrees that these claims are barred by the favorable termination rule of Heck v.
Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). See also Wilkinson v. Dotson, 544 U.S. 74, 125
S. Ct. 1242 (2005). The Fourth Circuit articulated a two part test for when the rule applies:
First, "a judgment in favor of the plaintiff [must] necessarily imply the invalidity
of [a plaintiffs] conviction or sentence." Second, the claim must be brought by a
claimant who is either (i) currently in custody or (ii) no longer in custody because
the sentence has been served, but nevertheless could have practicably sought habeas
relief while in custody.
Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015) (citations omitted).
Plaintiff's claims necessarily imply the invalidity of his sentence. Plaintiff makes this fact
clear by asserting that the relief he seeks is overturning his "unlawful conviction." (Dkt. No. 1-2

at 7.) Further, Plaintiff could have sought habeas relief while in custody, as demonstrated by three
prior § 1983 actions filed in this Court, at least two of which were filed while he was in custody. 1
In his objections, Plaintiff presents a new allegation that the Defendants withheld
"exculpatory information from judicial review. " (Dkt. No. 15 at 3.) This is a new ground for a
relief, and the Fourth Circuit has explained that a district court does not have a duty to review
newly raised issues in objections to a R & R. See Samples v. Ballard, 860 F.3d 266, 275 (4th Cir.
2017), cert. denied, 138 S. Ct. 979, 200 L. Ed. 2d 260 (2018) (holding that for "new ' issues' and
not new 'arguments' .. .there [is] no obligation for the district court to hear either of the new claims
.. . in [the] objections to the PF&R."). Furthermore, this claim similarly implies the invalidity of
his conviction, prohibiting its review under Heck. See Heckv. Humphrey, 512 U.S. at 479 (barring
review of§ 1983 claim regarding police knowingly destroying exculpatory evidence). Finally,
even if Plaintiffs claim was not barred by Heck, his argument would fail as he has not alleged any
facts to make the claim "plausible," instead merely making a single conclusory allegation that the
defendant "withh[eld] exculpatory evidence." See Bell At!. Corp. v. Twombly, 550 U.S. 544, 556,
127 S. Ct. 1955, 1965 (2007).

B.

Post-Conviction Relief

To the extent the Plaintiff seeks leave to file a new claim for post-conviction relief,
Plaintiffs claims regarding post-conviction relief are barred by South Carolina's one year statute
of limitations for post-conviction relief. See S.C. Code Ann. § 17-27-45.
Plaintiff, in his objections, raises two new issues: first, he alleges that while he did have a
post-conviction relief hearing, he received ineffective assistance of counsel, and; second, the he

1

Sullivan v. Wells, No. 7:02-3879-HFF (D.S.C.), aff'd, 120 F. App ' x 502 (4th Cir. 2005); Sullivan
v. Cnty. of Spartanburg, No. 6:05-1282-HFF, 2005 WL 5807359 (D.S.C. 2005), ajf'd, 225 F.
App' x 121 (4th Cir. 2007); Sullivan v. Wells, No. 6:09- 2551-RMG, 2010 WL 4156439, aff'd, 428
F. App'x 240 (4th Cir. 2011).

does not have access to his post-conviction relief records since the state misplaced the records.
Importantly, "there is no federal right to counsel in state post-conviction relief proceedings." Jones

v. Cty. ofNottoway, 27 F.3d 563 (4th Cir. 1994). Furthermore, Plaintiff has not, and cannot, bring
claims against his post-conviction relief counsel as he is not a state actor for purposes of§ 1983.
To the extent his § 1983 claim is based on South Carolina allegedly "misplac[ing]" or
" [m]issing" the records of his hearing, negligent misplacement ofrecords is not actionable under
§ 1983. See Perry v. SCDC, No. CA 4:12-1001-TLW-TER, 2012 WL 3626696, at *3 (D.S.C.
May 8, 2012), report and recommendation adopted, No. 4:12-CV-1001 -TLW-TER, 2012 WL
3613979 (D.S.C. Aug. 21, 2012), ajj'd, 501 F. App'x 222 (4th Cir. 2012) ("the negligent
misplacement of Plaintiffs application for post-conviction relief is not actionable under 42 U.S.C.

§ 1983.") citing Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986). Finally, while Plaintiff
claims he does not have access to information regarding his post-conviction relief hearing, a review
of public records reveals they are readily available. See David Farrell Sullivan v. State of South

Carolina, 2006CP4200496 (2006). 2

IV.

Conclusion

For the foregoing reasons, the R & R (Dkt. No. 12) is ADOPTED as the order of the Court
and Plaintiffs complaint (Dkt. No. 1) is DENIED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.

Richard Mark Ger el
United States District Court Judge
August & , 2018
Charleston, South Carolina
2https://publicindex.sccourts.org/Spartanburg/Publiclndex/CaseDetails.aspx?County=42&Court

Agency=42002&Casenum=2006CP4200496&CaseType=V&HKey=1061055166104768568121
651225285527349511117273114116114551041047748994812178113691031151111049911810
38773 .