Opinion
C/A No.: 1:19-1417-CMC-SVH
09-26-2019
Samuel Lamont Barnette, Plaintiff, v. South Carolina Department of Corrections 1993 Classification R&E Caseworker(s), Defendant.
REPORT AND RECOMMENDATION
Samuel Lamont Barnette ("Plaintiff"), proceeding pro se and in forma pauperis, filed this complaint pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the action without prejudice. I. Factual and Procedural Background
Plaintiff is a state prisoner at Lieber Correctional Institution. [ECF No. 10 at 2]. He alleges action by an unidentified South Carolina Department of Corrections ("SCDC") 1993 Classification R&E Caseworker ("Defendant") resulted in the extension of his 1989 juvenile sentence and multiple collateral consequences. Id. at 5-9. Plaintiff alleges when he was transferred from a juvenile facility to Broad River Correctional Institution in 1993, Defendant added a first-degree burglary and criminal sexual conduct charge to his adult record, even though he had committed those offenses in 1989 and they should have remained in his juvenile record. Id. He claims he suffered subsequent employment consequences because his criminal record erroneously referenced a 1993 conviction. Id. at 8, 9. Plaintiff maintains the erroneous 1993 conviction was used to enhance his sentence for another crime in December 2018. Id. at 8.
Plaintiff alleges he discovered the erroneous 1993 conviction upon review of his record on July 27, 2018. [ECF No. 10 at 13].
To the extent Plaintiff is challenging the sentence imposed in December 2018, his claim is not properly brought pursuant to § 1983. "[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Heck v. Humphrey, 512 U.S. 477, 481 (1991); see also Preiser v. Rodriguez, 411 U.S. 475 (1973) (holding claims seeking immediate or speedier release are not cognizable under § 1983 and must be brought in a habeas corpus proceeding); In re Wright, 826 F.3d 774, 779 (4th Cir. 2016) (finding challenge to classification affecting parole eligibility governed by 28 U.S.C. § 2254). Plaintiff maintains he filed an action for post-conviction relief in state court on April 11, 2019, and was awaiting scheduling of that matter as of May 29, 2019. [ECF No. 11 at 2-3]. Plaintiff is advised that a writ of habeas corpus under 28 U.S.C. § 2254 can only be sought after full exhaustion of his remedies in the courts of the State of South Carolina. See Picard v. Connor, 404 U.S. 270 (1971); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973).
Plaintiff alleges Defendant violated his Constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. Id. at 4. He requests the court review and direct modification of his juvenile and adult criminal records, award him $11,600,600,000.00 in damages, notify the state court and law enforcement that he is not required to register as a sex offender, and expunge the 1993 conviction from his adult record. Id. at 9.
On May 21, 2019, the undersigned issued (1) a proper form order directing Plaintiff to properly complete a summons form and Form USM-285, and (2) an order and notice cautioning Plaintiff that his complaint was subject to dismissal because he had failed to name as defendant a person amenable to suit under § 1983. [ECF Nos. 6, 7 at 4]. Plaintiff initially named "South Carolina Department of Corrections Classification Board" as the defendant in the complaint. [ECF No. 1]. On June 5, 2019, Plaintiff filed an amended complaint naming Defendant, a proposed summons, and a completed Form USM 285. [ECF Nos. 10, 12, 12-1]. The undersigned issued an order authorizing service of process on June 12, 2019. [ECF No. 15]. On July 19, 2019, the Marshal returned the Form USM-285 with certification that he was unable to locate Defendant as identified. [ECF No. 20]. On September 11, 2019, the undersigned issued an order permitting Plaintiff until September 25, 2019, to respond and show good cause for his failure to provide information to effectuate service upon Defendant. [ECF No. 21]. Plaintiff failed to respond to the court's order. II. Discussion
The proper form order notified Plaintiff he "must provide, and [was] responsible for, information sufficient to identify Defendant(s) on the Form(s) USM-285." [ECF No. 6 at 2]. It further warned "t]he United States Marshal cannot serve an improperly identified defendant, and unserved defendants may be dismissed as parties to a case." Id.
The order directed the Clerk to issue the summons and to forward copies of the order, the summons, the amended complaint, and the Form USM-285 to the United States Marshal ("Marshal") for service of process. [ECF No. 15 at 1]. The order directed the Marshal to serve the complaint on Defendant within 90 days, to expend a reasonable investigative effort to locate Defendant, and to note in the "Remarks" section if the information provided by Plaintiff on the Form USM-285 was insufficient to effect service of process. Id. at 1-2. It warned Plaintiff he was responsible for information sufficient to identify Defendant on the Form USM-285 and that Defendant may be dismissed as a party if not served within the time limit governed by Fed. R. Civ. P. 4(m). Id. at 2.
Pursuant to Fed. R. Civ. P. 4(m), "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the Plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time," but "[i]f Plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id.
Because Plaintiff filed his case pro se and in forma pauperis, the 90-day time period did not begin to run until the summons was issued on June 12, 2019, and it expired on September 10, 2019. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling during initial review).
Plaintiff indicated on the Form USM-285 that Defendant should be served at "South Carolina Department of Correction Classification Headquarters," and provided an address of "4444 Broad River Rd., Columbia, S.C. 29210." [ECF No. 12-1]. Upon engaging in a reasonable investigative effort to locate Defendant at the specified address, the Marshal returned the USM-285 with the following remark: "7-16-19 SCDC OGC can not accept is not a proper entity." [ECF No. 20]. The 90-day service deadline expired on September 10, 2019, without service of the summons and complaint on Defendant.
Prior to issuance of the summons, the court warned Plaintiff that failure to properly identify Defendant on the USM-285 could result in Defendant's dismissal as a party. See ECF Nos. 6 at 2 and 15 at 2. Despite these warnings, Plaintiff failed to provide information sufficient to identify Defendant, resulting in the Marshal's failure to effect service of process. The court subsequently provided Plaintiff until September 25, 2019, to show good cause for his failure to provide information to effectuate service upon Defendant and warned him that failure to show good cause or to properly identify Defendant would result in the case being recommended for dismissal without prejudice pursuant to Fed. R. Civ. P. 4(m). [ECF No. 21]. Despite this warning, Plaintiff failed to respond and provide good cause for his failure to properly identify Defendant.
In light of the foregoing and because the deadline for service of process under Fed. R. Civ. P. 4(m) has passed without service of process on the singular Defendant, the undersigned recommends the court dismiss the case pursuant to Fed. R. Civ. P. 4(m). III. Conclusion and Recommendation
Accordingly, the undersigned recommends the district judge dismiss this action without prejudice.
IT IS SO RECOMMENDED. September 26, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).