Opinion
C/A No. 3:20-3354-HMH-MHC
12-17-2020
Charles Anderson, Plaintiff, v. Justin Kata, Attorney of Law; Barney Giese, Attorney of Law; Kelly Giese, Attorney of Law; Bronwyn K. McElveen, State Attorney of Law; Willie McFadden, Defendants.
REPORT AND RECOMMENDATION
At the time Plaintiff filed this action, he was a pretrial detainee at the Sumter-Lee Detention Center. He is currently an inmate at the Kirkland Correctional Institution of the South Carolina Department of Corrections. See Notice of Change of Address, ECF No. 7. In the event a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to the district court). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In the Court's Order dated October 21, 2020 (ECF No. 10), Plaintiff was given the opportunity to bring his case into proper form by providing the specific item (completed summons form) as specified in the Order. Plaintiff has not provided the necessary proper form document or responded to the Order in any way. The Order also gave Plaintiff notice to amend the complaint and advised him of pleading deficiencies. See ECF No. 10. Plaintiff has not filed an amended complaint.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
However, even when considered under this less stringent standard, for the reasons set forth below, the Complaint submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
BACKGROUND
Plaintiff claims that on August 18, 2020, Defendants willfully deprived and denied him of his due process rights and violated his rights under 18 U.S.C. §§ 241, 242, and 245. Complaint, ECF No. 1 at 4-6. He asserts that his Fifth, Eighth, and Fourteenth Amendment rights were violated. Id. at 4. Plaintiff alleges he suffered mental and emotional stress as a result of the alleged actions for which he seeks monetary damages. Id. at 6.
DISCUSSION
1. Failure to State a Claim
This action should be summarily dismissed because Plaintiff fails to state a claim against any of the named Defendants. Although Plaintiff lists the names of the Defendants in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that these named Defendants violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, " 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests'" (quoting Fed. R. Civ. P. 8(a)(2))). Further, although Plaintiff asserts that his rights were violated, he provides no facts in support of any alleged violation. Although the "liberal pleading requirements" of Rule 8(a) only require a "short and plain" statement of the claim, a plaintiff must "offer more detail ... than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which "failed to contain any factual allegations tending to support his bare assertion").
With his Complaint, Plaintiff submitted three "Forms COL" titled "Violation Warning Denial of Rights Under Color of Law" which appear to have been printed from the internet and filled out by Plaintiff. Although Plaintiff attached handwritten information generally alleging constitutional and statutory violations and the forms mention 18 U.S.C. §§ 242, and 245 as well as 42 U.S.C. § 1983, no facts related to any violation of these statutes are provided and there are no specific allegations against Defendants. See ECF No. 1-1.
See, e.g., Konetsco v. Lancaster Cty. - Bureau of Collections, No. 19-CV-5095, 2019 WL 6327198, at *2 (E.D. Pa. Nov. 25, 2019) (addressing claims set out in a "Form COL").
Moreover, §§ 241, 242, and 245 are criminal statutes that do not give rise to civil liability or authorize a private right of action. See United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003) (finding that the District Court properly dismissed defendant's claim filed pursuant to 18 U.S.C. §§ 241 and 242 because he had no private right of action under either of those criminal statutes); Kelly v. Rockefeller, 69 F. App'x 414, 415 (10th Cir. 2003) (stating "[t]he district court correctly dismissed plaintiff's claims under 18 U.S.C. § 241 and § 245, for failure to state a claim, because the criminal statutes do not provide for private civil causes of action"); New York v. Horelick, 424 F.2d 697, 702 (2d Cir. 1970) (providing 18 U.S.C. § 245 "does not confer substantive rights; it is solely a criminal statute permitting federal prosecution for interference with a long list of activities"); Wagner v. United States, 377 F.Supp.2d 505, 510-511 (D.S.C. 2005) (§ 241 is a criminal statute that provides no private cause of action); Rockfeller v. U.S. Ct. of Appeals Office, 248 F.Supp.2d 17, 23 (D.D.C. 2003) (the plaintiff was precluded from bringing case under § 242 because there is no private cause of action under this criminal statute)(collecting cases).
Plaintiff states that he brings a due process claim against Defendants. As noted above, it is unclear the nature of this allegation. Additionally, to the extent Plaintiff seeks monetary damages for allegations that question the validity of his recent criminal convictions, his claims are subject to summary dismissal based on the United States Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), where the Court held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487. As Plaintiff has not alleged that his convictions have been invalidated, any claims he is presenting here for a lack of due process are barred by Heck and should be dismissed. See Lambert v. Williams, 223 F.3d 257, 260-261 (4th Cir. 2000)(claim for malicious prosecution requires a showing that the initiation or maintenance of a proceeding against the plaintiff was without probable cause to support it and a termination thereof occurred in favor of the plaintiff), cert. denied, 531 U.S. 1130 (2001); Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996) (Claim for malicious prosecution does "not accrue until a favorable termination is obtained."); Roesch v. Otarola, 980 F.2d 850, 853-854 (2d Cir. 1992)(holding that requirement that a plaintiff receive favorable determination applies to claims of false arrest, false imprisonment, and malicious prosecution). To the extent Plaintiff instead requests that this Court intervene in a pending state court criminal case, federal courts, absent extraordinary circumstances, are not authorized to interfere with a State's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989).
Records from Sumter County indicate that on September 28, 2020, Petitioner pleaded guilty to one count of attempted murder, two counts of armed robbery, and two counts of possession of a weapon during a violent crime. See Sumter County Public Index, https://publicindex.sccourts.org/Sumter/PublicIndex/PISearch. aspx (search for Charles S. Anderson) (last visited December 16, 2020). This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008)(noting that courts may take judicial notice of governmental websites including other courts' records).
Plaintiff may be attempting to assert constitutional claims pursuant to § 1983 against attorneys Justin Kata, Barney Giese, and Kelly Giese. However, Plaintiff has alleged no facts to indicate that these Defendants acted under color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk Cnty. v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) ("A lawyer representing a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning of § 1983."); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney).
Additionally, Defendant Bronwyn K. McElveen, who appears to be an assistant solicitor in the Third Circuit (Sumter County) Solicitor's Office, is entitled to absolute immunity to the extent that Plaintiff alleges claims against Defendant McElveen for activities performed as "an officer of the court" where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009). For example, when a prosecutor "prepares to initiate a judicial proceeding"; "appears in court to present evidence in support of a search warrant application"; or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial "motions" hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000).
II. Failure to Bring Case into Proper Form
Finally, it should be noted that Plaintiff has failed to bring this case into proper form. In the Court's Order dated October 21, 2010, Plaintiff was given the opportunity to bring his case into proper form by providing a fully completed summons form. Plaintiff was specifically warned that the failure to provide the necessary document within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 10.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide a response to the proper form Order, or to contact the Court in any way. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed. R. Civ. P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either 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 F. App'x 280, 281 (4th Cir. 2018); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993). As noted above, Plaintiff was advised of material defects in his complaint, see ECF No. 10, but he failed to file an amended complaint or otherwise cure the defects in his Complaint.
Plaintiff's attention is directed to the important notice on the following page.
/s/_________
Molly H. Cherry
United States Magistrate Judge December 17, 2020
Charleston, South Carolina
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 835
Charleston, South Carolina 29402
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).