Opinion
C/A No. 4:18-3181-RMG-TER
02-06-2019
Supreme Raheem Ackbar, #182864, a/k/a Ronald Gary, #275886, Plaintiff, v. Patricia S. Connor, Clerk, James N. Ishida, Secretary, Richard H. Sewell, Deputy Clerk, Karen Stump, Deputy Clerk US Court of Appeals Richard M. Gergel, Thomas E. Rogers, III, Defendants.
Report and Recommendation
This is a civil action filed by a state prisoner proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted," "is frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Defendants in this action are staff of the Fourth Circuit Court of Appeals and the district court judge and magistrate court judge assigned to this case and to Plaintiff's previously filed actions in this court.
Plaintiff was twice informed regarding immunity as to the original defendants and given notice and opportunity to amend his complaint. He availed himself of such opportunity and filed an Amended Complaint; however, the deficiencies persist as to immune defendants and this action is subject to summary dismissal.
Defendants Connor, Ishida, Stump, and Sewell are alleged to be Fourth Circuit court clerk employees, and "a court clerk is generally entitled to quasi-judicial immunity" for tasks he or she undertook as part of the judicial process. Ross v. Baron, 493 Fed. Appx. 405, 406 (4th Cir. 2012). The alleged constitutional violations committed by Defendants involve Defendants' performance of official tasks. As a result, Plaintiff cannot recover monetary damages or obtain other relief from Defendants. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity "is an immunity from suit rather than a mere defense to liability").
Plaintiff's claims against Defendants Gergel and Rogers based on their official participation and resulting judicial rulings made in relation to Plaintiff's court cases are barred by the doctrine of absolute judicial immunity. Judicial immunity is a threshold question which requires summary dismissal. Siegert v. Gilley, 500 U.S. 226, 232 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As the Fourth Circuit has stated relevant to the reasons for the doctrine of absolute immunity for judges:
The absolute immunity from suit for alleged deprivation of rights enjoyed by judges is matchless in its protection of judicial power. It shields judges even against allegations of malice or corruption. . . . The rule is tolerated, not because corrupt or malicious judges should be immune from suit, but only because it is recognized that judicial officers in whom discretion is entrusted must be able to exercise discretion vigorously and effectively, without apprehension that they will be subjected to burdensome and vexatious litigation.McCray v. Maryland, 456 F.2d 1, 3 (4th Cir.1972) (citations omitted), overruled on other grounds, Pink v. Lester, 52 F.3d 73, 77 (4th Cir.1995).
Plaintiff alleges the events began to arise in 2014. (ECF No. 15 at 6). Plaintiff requests "relief from the entries of the default judgments and the misconduct of the federal, state, and local officials, and also a permanent injunction." (ECF No. 15 at 7). The facts alleged involve multiple filings and opinions in the Fourth Circuit and the district court. (ECF No. 15 at 16-26). Plaintiff alleges Defendants acted via opinions and unpublished opinions to prevent Plaintiff obtaining judicial redress. (ECF No. 15 at 18). Plaintiff alleges he has been stripped of his God Center Culture Islam property due to the judges' opinions. (ECF No. 15 at 18). Plaintiff alleges the defendant judges were responsible for the "illegal seizure of Plaintiff's right to access the court." (ECF No. 15 at 21).
Some of Plaintiff's references to cases and filings involve the following. The district court dismissed case No. 4:18-cv-1581-RMG with prejudice as frivolous with a strike and the Fourth Circuit dismissed his appeal in December 2018. In another case, No. 4:17-cv-0109-RMG, the action, involving Plaintiff's God Center Culture Islam materials, was dismissed and the Fourth Circuit Court of Appeals affirmed the decision in June 2018. Plaintiff's claims are based in his disagreement regarding the final results of his prior cases. Such is not actionable here as judicial immunity is applicable to Defendants' actions based on their official participation and resulting judicial rulings made in relation to Plaintiff's court cases. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); King v. Nalley, 737 Fed. Appx. 163, 164 (4th Cir. 2018).
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with recent Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend, has amended, and still has failed to state a claim upon which relief could be granted.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 6, 2019
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
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
Post Office Box 2317
Florence, South Carolina 29503
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).