Petition for Writ of Certiorari — Robert Lee Mitchell, Petitioner v. Miller, Magistrate Judge, et al.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-7216

ROBERT L. MITCHELL, a/k/a Robert Lee Mitchell, a/k/a Robert Mitchell,

Plaintiff - Appellant,

v.

MAGISTRATE JUDGE MILLER; BARBARA MORGAN; JUDGE COSTA

PLEICONES,

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Florence.

Cameron McGowan Currie, Senior District Judge. (4:19-cv-01668-CMC)

Submitted: October 15, 2019

Decided: October 18, 2019

Before GREGORY, Chief Judge, and THACKER and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Mitchell, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Robert L. Mitchell appeals the district court’s order adopting the recommendation

of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2012) civil action. We have

reviewed the record and find no reversible error. Accordingly, we affirm for the reasons

stated by the district court. Mitchell v. Miller, No. 4:19-cv-01668-CMC (D.S.C. Aug 7,

2018). We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Robert L. Mitchell, #140920,

Civil Action No. 4:19-cv-1668-CMC

Plaintiff,

vs.

OPINION AND ORDER

Magistrate Judge Miller, Barbara Morgan,

Judge Costa Pleicones,

Defendants.

This matter is before the court on Plaintiffs Amended Complaint pursuant to 42 U.S.C. §

1983.1 ECF No. 10. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d),

D.S.C., the matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre­

trial proceedings. On August 6, 2019, the Magistrate Judge issued a Report and Recommendation

(“Report”) recommending this matter be summarily dismissed with prejudice and without issuance

and service of process based on judicial and prosecutorial immunity, and on statute of limitations

and the “favorable termination” requirement in Heckv. Humphrey, 512 U.S. 477,487 (1994). ECF

No. 15. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing

objections to the Report and the serious consequences if he failed to do so. Plaintiff filed objections

on August 6,2019.2 ECF No. 17.

After Plaintiff filed his original Complaint (ECF No. 1), the Magistrate Judge entered a Proper

Form Order, notifying Plaintiff of deficiencies in his Complaint - specifically, that claims against

judicial defendants are barred by absolute judicial immunity, and claims against a solicitor are

barred by prosecutorial immunity - and allowing him an opportunity to file an Amended

Complaint. See ECF No. 7. Plaintiff filed his Amended Complaint on July 2, 2019. ECF No. 11.

2 Plaintiff also filed a Motion for Summary Judgment, for Temporary Restraining Order, and for

Preliminary Injunction on August 6. ECF No. 18.

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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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo

determination of any portion of the Report of the Magistrate Judge to which a specific objection

is made. The court may accept, reject, or modify, in whole or in part, the recommendation made

by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28

U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.

See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that

“in the absence of a timely filed objection, 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.”) (citation omitted).

After considering the record, the applicable law, the Report and Recommendation of the

Magistrate Judge, and Plaintiffs objections, the court agrees with the Report’s recommendation

the case be dismissed. As noted by the Magistrate Judge, Judges Miller and Pleicones are entitled

to absolute judicial immunity, and Barbara Morgan, a Barnwell county Solicitor, is entitled to

prosecutorial immunity. Further, it appears Plaintiffs false arrest claim is barred by the statute of

limitations, and a malicious prosecution claim for damages and injunctive relief related to

prosecution of criminal charges is barred by Heck because Plaintiff has not shown favorable

termination of the criminal proceedings against him. To the extent Plaintiff requests release from

imprisonment, such a remedy is not available under § 1983.

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None of Plaintiffs objections alter these conclusions. He argues the Report does not

contain factual findings, and therefore fails to address the facts specific to Plaintiffs case. ECF

No. 17 at 2. Further, he argues this failure and the recommendation in the Report to “deny Plaintiff

service of process” shows prejudicial intent and therefore the Magistrate Judge should recuse. Id.

He also seems to suggest the Report is somehow defamatory. Id. at 4. In Plaintiff s separate

motion for summary judgment, temporary restraining order, and preliminary injunction, he

contends he was “denied proper due process by Magistrate Judge Miller, Solicitor Barbara

Morgan, trial judge Costa Pelicones [i'/'c].” ECF No. 18 at 1. He argues the substance of his Due

Process claim regarding his criminal proceedings in 1994, during which he alleges he was mentally

ill and should not have been convicted.

He also contends the “aforementioned defendants

perform[ed] outside the scope of their duties.” Id. at 5.

The court finds these objections unavailing. Judges Mitchell and Pleicones had absolute

judicial immunity, and no set of facts would allow a plaintiff to sue them for judicial actions.

Solicitor Morgan was covered by prosecutorial immunity, which shields solicitors from damages

liability when acting in the scope of their duties. Applying this law to the facts as alleged by

Plaintiff, it is clear he cannot bring suit against these Defendants as he challenges their actions in

connection with his criminal case. Plaintiff has been given an opportunity to amend, and it does

not appear Plaintiff would be able to further amend his Amended Complaint to allege any facts

that would allow him to sue these Defendants.

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Accordingly, the court adopts the Report by reference in this Order. Plaintiffs motion

(ECF No. 18) is denied. This matter is hereby dismissed with prejudice and without issuance and

service of process.

IT IS SO ORDERED.

s/Cameron McGowan Currie

CAMERON MCGOWAN CURRIE

Senior United States District Judge

Columbia, South Carolina

August 7, 2019

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