Arbogast v. Spartanburg County et al
ORDER RULING ON REPORT AND RECOMMENDATIONS. The Report and Recommendation is accepted and adopted in its entirety. The Plaintiffs Complaint is DISMISSED without prejudice. Signed by Honorable G Ross Anderson, Jr on 11/17/11. (gpre, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROGER LEE ARBOGAST,
SPARTANBURG COUNTY; STATE OF
SOUTH CAROLINA; TRAY GOUDY; JAMES
CHEEKS; JOSH KELLY; ASHLEY C.
HARRIS; BRYANNA ROGERS; BILL
CAFFEY; MARC KITCHENS; RUSS RODINE;
C/A. No.: 07:11-cv-00198-GRA
This matter comes before the Court for review of the magistrate’s Report
and Recommendation filed on March 8, 2011 and made in accordance with 28
U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C.
Plaintiff Roger Arbogast
brought this action on January 25, 2011, pursuant to 42 U.S.C. § 1983. In her
March 8, 2011 Report and Recommendation, Magistrate Judge Paige J. Gossett
recommended dismissing this case without prejudice.
See ECF No. 8.
filed a timely Objection to the magistrate judge’s Report and Recommendation on
March 14, 2011.
See ECF No. 11.
For the reasons stated herein, the Court
adopts the magistrate’s Report and Recommendation in its entirety.
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Plaintiff is a former prisoner of the South Carolina Department of Corrections
and was released, according to his Complaint, on October 27, 2007. According to
Plaintiff’s Complaint, he was arrested for possession and trafficking of Opium, in
violation of S.C. Code Ann. § 44-53-370 (1976).
He makes the following
allegations against Spartanburg County:
Spartanburg Co. was involved in entrapment[,]
Misconduct Miscarriage of Justice Wrongful conviction,
False Imprisonment, Perjury Grand Jury Misconduct, Lack
of Jurisdictions (sic), Withholding evidence False
Testimony Theft I have all of the paperwork to prove my
case To this court from the day of the entrapment to the
trial to sentence all of it . . .
ECF No. 1. Plaintiff requests that this Court grant him monetary damages based on
the five years of time he improperly served in prison. Id.
Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
This Court is charged with liberally construing a pleading filed by a pro se litigant to
allow for the development of a potentially meritorious claim. Boag v. MacDougall,
454 U.S. 364, 365 (1982).
A court may not construct the plaintiff’s legal
arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), nor is a
district court required to recognize “obscure or extravagant claims defying the most
concerted efforts to unravel them,” Beaudett v. City of Hampton, 775 F.2d 1274,
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1277 (4th Cir. 1985), cert denied, 475 U.S. 1088 (1986).
The magistrate makes only a recommendation to the Court.
recommendation carries no presumptive weight, and the responsibility to make a
final determination remains with the Court. Matthews v. Weber, 423 U.S. 261,
270–71 (1976). This Court is charged with making a de novo determination of
those portions of the Report and Recommendation to which specific objection is
made. Accordingly, this Court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)
In Plaintiff’s Complaint and Objections to the magistrate’s Report and
Recommendation, Plaintiff raised a claim of false imprisonment, wrongful
conviction, and entrapment, alleging that there was a violation of Plaintiff’s
constitutional rights under § 1983 for police misconduct in that they “lured and
induced [Plaintiff] into a crime they invented,” which resulted in his conviction.
See ECF No. 1.
Moreover, Plaintiff is seeking monetary damages against state
officials for these alleged constitutional violations.
After a review of the
record, this Court finds that the magistrate’s Report and Recommendation
accurately summarizes this case and the applicable law.
would render his conviction and sentence invalid. Therefore, his allegations fail to
meet the requirements outlined in Heck v. Humphrey, 512 U.S. 477 (1994):
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We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm whose unlawfulness would render a conviction or
sentence invalid, a § 1983 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 a determination,
or called into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not
cognizable under § 1983.
Heck, 512 U.S. at 486-87 (footnote omitted). The Report and Recommendation
accurately concludes that this action must be dismissed for failure to state a claim
because Plaintiff has failed to allege that his conviction has been reversed,
expunged, or declared invalid by a state court, and no writ of habeas corpus has
been issued. See ECF No. 8.
Plaintiff objects to his conviction on the ground that “there was no evidence
presented to the grand jury to render a legal true bill. . . .” ECF No. 11. Plaintiff’s
objection essentially reiterates his Complaint which alleges that he was wrongfully
convicted there was no evidence supporting his conviction. In order for objections
to be considered by a United States District Judge, the objections must be timely
filed and must specifically identify the portions of the Report and Recommendation
to which the party objects and the basis for the objections. Fed. R. Civ. P. 72(b);
see United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984); Wright v.
Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir. 1985). “Courts have . . . held de
novo review to be unnecessary in . . . situations when a party makes general and
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conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendation.”
Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). Furthermore, in the absence of specific objections to
the Report and Recommendation, this Court is not required to give any explanation
for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 1999 (4th Cir.
Plaintiff’s Objections are general and conclusory in that they merely
reassert that his conviction was wrongful. Plaintiff fails to specifically object to the
magistrate’s Report and Recommendation. Therefore, Plaintiff’s Objections do not
warrant further explanation.
Therefore, the Report and Recommendation is accepted and adopted in its
IT IS THEREFORE ORDERED that Plaintiff’s Complaint is DISMISSED without
IT IS SO ORDERED.
November 17, 2011
Anderson, South Carolina
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NOTICE OF RIGHT TO APPEAL
Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure,
Plaintiff has the right to appeal this Order within thirty (30) days from the date of
its entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules
of Appellate Procedure, will waive the right to appeal.
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