Opinion
C. A. 3:22-cv-923-TLW-SVH
07-19-2023
Marie Assa'ad-Faltas, M.D., M.P.H., Plaintiff, v. John W. Kittredge, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Marie Assa'ad-Faltas (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint pursuant to 28 U.S.C. § 1331against South Carolina Supreme Court (“SCSC”) Justice John W. Kittredge (“Defendant”). Pursuant to 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 Plaintiff's complaint as moot and barred by judicial immunity and deny leave for further amendment of her complaint.
Plaintiff indicates in the complaint that the court has jurisdiction pursuant to 42 U.S.C. § 1981 and § 1983 and 28 U.S.C. § 2254. Although she claims she is “a Coptic Orthodox Christian” and lawful permanent resident and “Defendant is of different religion, ethnicity and nationality,” she does not allege facts that would support a claim for discrimination under 42 U.S.C. § 1981 or §1983. See generally ECF No. 1. Plaintiff also admits in her complaint that she could not properly pursue a claim pursuant to 28 U.S.C. § 2254 because she had not been convicted at the time she brought the action. [ECF No. 1 at 3].
I. Factual and Procedural Background
Plaintiff alleges Defendant required her to answer an improper criminal contempt charge. [ECF No. 1 at 1]. She claims that on September 27, 2017, Defendant and two other SCSC associate justices issued an order restricting her contact with various employees of South Carolina's state court system. Id. at 2. The September 27, 2017 order stated in pertinent part:
Except as otherwise provided in this order, Respondent may not contact any judge, justice, law clerk, clerk of court, or other officer or employee of the Unified Judicial System in person, in writing, or by mail, telephone, fax, e-mail, or other form of electronic communication. Instead, it if is necessary for Respondent to contact an officer or employee of the Judicial System outside of a scheduled hearing or trial, that contact shall be made in writing and shall be filed with the appropriate clerk of court by an attorney licensed to practice law in South Carolina, or by Respondent if she has been permitted by an order of the applicable court to proceed pro se.[ECF No. 21-1 at 10 (citing In re Assa'ad-Faltas, SC Sup. Ct. Order dated Sept. 27, 2017)].It further indicated that in cases in which Plaintiff had been permitted to proceed pro se, her filings “shall be made in writing and shall either be hand-delivered or mailed by United States Mail to the clerk of court.” Id. It provided: “Respondent shall not send filings to the clerk by fax, e-mail, or any other form of electronic communication.” Id.
Plaintiff attached a copy of the SCSC's order to a renewed motion for recusal and motion to stay. [ECF No. 21].
Plaintiff claims the September 27, 2017 order was so ambiguous that it required the court's subsequent clarification. [ECF No. 1 at 2]. In a September 20, 2019 order, the court wrote:
[W]e intend for [post-conviction relief (PCR)] actions to be included in the prohibition against Respondent proceeding pro se as a plaintiff in civil actions. Because PCR actions are generally commenced pro se, we clarify that Respondent may file an initial PCR application pro se. However, Respondent is prohibited from proceeding pro se any further than filing the initial PCR action.[ECF No. 21-1 at 10-11 (citing Assa'ad Faltas v. State, S.C. Sup. Ct. Order dated Sept. 20, 2019)].
Plaintiff claims that on January 24, 2022, Defendant initiated a criminal contempt case against her for allegedly violating the court's prior order because she called and emailed various court employees over a 22-month period while the courts were closed due to the pandemic. Id. at 3. Plaintiff does not deny that she contacted court employees, but maintains “all the contacts resulted from” SCSC and South Carolina Court of Appeals “clerical personnel delaying, concealing, mis-titling, and/or misdirecting, papers [she] filed pro se in her own cases or papers [the courts] should have sent in response to actions in [her] cases.” Id. On February 22, 2022, Plaintiff appeared before the SCSC for a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), to determine whether she could proceed pro se in a rule to show cause (“RTSC”) hearing on the alleged violations of the court's September 27, 2017 order. [ECF No. 16 at 6-12]. Plaintiff stated she had not taken any alcohol, medication, or drugs in the last 24 hours, except for thyroid medication, as prescribed; she had been assessed with depression, but it did not affect her ability to understand; she understood the dangers of self-representation; she wanted to represent herself; she objected to appointment of standby counsel; and she had freely and voluntarily made the decision to represent herself. Id. Plaintiff subsequently supplemented the complaint with a copy of the transcript from the March 22, 2022 RTSC hearing. [ECF No. 16 at 13-54]. She also filed a copy of the SCSC's June 10, 2022 order finding “beyond a reasonable doubt” that she “willfully violated” the court's September 27, 2017 order and holding her in contempt of court. [ECF No. 21-1 at 6-16]. The order provides, in part:
Plaintiff filed this transcript as a supplement to the complaint. [ECF No. 16 at 6-12].
This matter came before the Court on March 22, 2022, pursuant to a Rule to Show Cause alleging Respondent Marie Assa'ad Faltas is in criminal contempt of court for violating this Court's September 27, 2017 order prohibiting her from contacting any judge, justice, law clerk, clerk of court, or any other officer or employee of the Unified Judicial System. As explained below, we find beyond a reasonable doubt that Respondent willfully violated this Court's order on numerous occasions by her continued contact with Clerk of Court Daniel E. Shearouse, who has since retired. Accordingly, we hold Respondent in contempt of court and sentence her to six months in jail, suspended upon the service of ten days in jail at the Alvin S. Glenn Detention Center. Respondent shall report to the Alvin S. Glenn Detention Center at 10:00 am on Monday, June 27, 2022, to serve the ten-day contempt sentence. The balance of the six-month sentence is suspended on the condition Respondent comply with the orders of this Court. As an additional element of her sentence for contempt, we prohibit
Respondent from filing any document in any form in the Unified Judicial System of South Carolina except in the limited instances set forth below.
Respondent is a prolific frivolous filer. See generally City of Columbia v. Assa'ad Faltas, 420 S.C. 28, 31800 S.E.2d 782, 783 (2017) (detailing Respondent's lengthy history of abusive filing). However, to limit the description of Respondent's actions to merely “prolific frivolous filings” would be a gross understatement. For over two decades, this Court and various lower courts throughout our state have been besieged by Respondent and her extensive, burdensome, and vexatious litigation and filings ....
[In response, the court issued multiple orders.]. Accordingly, no provision [of those orders] allowed Respondent to contact an officer or employee of the Unified Judicial System by e-mail. Nevertheless, in direct violation of this Court's order, Respondent sent e-mail communications to Mr. Shearouse on October 22, 2020; January 22, 2021; January 22, 2021; and January 10, 2022.[ECF No. 21-1 at 6-7, 10-11 (footnotes omitted); see also id. at 6 n.2 (“As stated from the bench during the contempt proceeding, because of the protracted nature of the hearing, the Court proceeded on only four of Respondent's twenty-two contacts with seven officers and/or employees of the Unified Judicial System. The remaining eighteen matters are not addressed in this order and are held in abeyance.”)].
Plaintiff's complaint alleges she has suffered irreparable injury because the orders of the SCSC “discriminatorily shut her out of SC's courts” and denied her “the comforts of inquiring by phone and filing by email, which are afforded by all similarly-situated others, frivolous or not,” causing physical damage to her left leg “through forced ambulation.” Id. at 3. She argues her right to privacy was violated when she was required to disclose her medication history and efforts against depression during the Faretta hearing and because the SCSC conditioned accommodation of her physical disabilities on her surrendering her right to privacy of her relationship with her treating physician. Id. at 3-4. She indicates the SCSC intended to deny her a public trial and access to monitoring by her consular officer because the contempt case does not appear on the court's electronic public database C-track and the hearing was not scheduled for live-streaming. Id. She claims the SCSC also intended to deny her right to a jury trial on the contempt charge. Id.
In a March 2, 2022 order, the SCSC stated it would “consider and grant any reasonable and necessary accommodations for any of” Plaintiff's “physical disabilities,” but “[a]ny such request must include supporting documentation and statement(s) from her treating physician(s).” [ECF No. 1-1 at 63].
Plaintiff requests the court provide declaratory judgment that a contempt claim may not arise from violation of an administrative order because the SCSC's judicial power is limited to cases and controversies. Id. She asks this court to find contempt charges must be tried by jury where a state legislature permits trial by jury in petty offenses. Id. She asks this court to declare that all case documents must be publicly available, but subject to redaction. Id. She requests the court declare meaningful access to consular officers includes provisions for a consular officer's remote monitoring. Id. She asks the court to declare that because the SCSC issued the underlying order, it cannot judge whether it was violated. Id. She prays the court declare the SCSC's September 27, 2017 order void, as it did not arise from a case or controversy and was not submitted to the General Assembly. Id. She further asks this court to limit penalties for frivolous filings to those in South Carolina's Frivolous Claims Act and Rule 11. Id. She requested the court enjoin the RTSC hearing or, in the alternative, order that the contempt trial be held remotely and subject to this court's and the Egyptian consul's monitoring. Id.
Plaintiff filed her complaint on March 21, 2022. [ECF No. 1]. On April 6, 2022, the court issued a proper form order and an order and notice warning Plaintiff that her complaint was subject to summary dismissal and permitting her until April 27, 2022, to file an amended complaint and bring the case into proper form. [ECF Nos. 5, 6]. Plaintiff subsequently filed a motion to proceed in forma pauperis and a proposed summons [ECF Nos. 9, 10], but did not file an amended complaint. She filed two supplements to the complaint [ECF Nos. 16, 23] and motions to stay the case and for a temporary restraining order (“TRO”). [ECF Nos. 21, 22]. On July 5, 2022, the undersigned issued a report and recommendation recommending Plaintiff's motions to stay and for a TRO be denied. [ECF No. 25]. The court accepted the report and recommendation and denied Plaintiff's motions on November 7, 2022. [ECF No. 28]. Plaintiff subsequently appealed the court's decision to the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”). [ECF No. 32]. On November 29, 2023, the Fourth Circuit dismissed the appeal for lack of jurisdiction, as the order Plaintiff sought to appeal was “neither a final order nor an appealable interlocutory or collateral order.” Assa'ad-Faltas v. Kittredge, No. 22-2189, 2023 WL 4249360 (4th Cir. June 29, 2023).
Because the appeal was dismissed for lack of jurisdiction, the court is not required to await the Fourth Circuit's mandate to proceed in this case.
II. Discussion
A. Standard of Review
Plaintiff filed her complaint 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 a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
B. Analysis
1. Plaintiff's Claims Appears to be Moot
The court cannot grant most of Plaintiff's requests for declaratory and injunctive relief because they pertain to procedures for conducting a RTSC hearing that has already taken place in the state court system. “Federal courts are limited to resolving cases and controversies ....” South Carolina Coastal Conservation League v. U.S. Army Corp. of Engineers, 789 F.3d 475, 482 (4th Cir. 2015) (citing U.S. CONST. art. III, § 2). “When a case or controversy ceases to exist, the litigation is moot, and the court's subject matter ceases to exist also.” Id. (citing Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1989) (per curiam)). “A case can become moot due to either a change in the facts or a change in the law.” Id. (citing Ross v. Reid, 719 F.2d 689, 693-94 (4th Cir. 1983)).
Here, Plaintiff filed her complaint on March 21, 2022, the day before the scheduled RTSC hearing. [ECF No. 1]. Plaintiff has filed supplements to her complaint that show the hearing proceeded on March 22, 2022, and the SCSC subsequently issued an order holding her in contempt of court for violating its prior order. [ECF Nos. 16 at 13-54 and 21-1 at 6-16]. Plaintiff has also filed documents in another case before this court indicating she served the 10-day sentence the SCSC imposed pursuant to its June 10, 2022 order. See Assa'ad-Faltas v. Moye, C/A No. 1:22-3191-TLW-SVH, ECF No. 1 (D.S.C. Sept. 19, 2022). Therefore, the court cannot provide the relief Plaintiff requested in her complaint with respect to the RTSC hearing, and there is no longer a controversy. See Broughton v. State of N.C. , 717 F.2d 147, 148 (4th Cir. 1983) (dismissing the appeal as moot because petitioner had served the sentence she received upon her contempt of court conviction).
A district court may take judicial notice of materials in the court's own files from prior proceedings. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that the most frequent use of judicial notice is in noticing the content of court records); Fletcher v. Bryan, 175 F.2d 716, 717 (4th Cir. 1949).
The undersigned further notes the SCSC's June 10, 2022 order attempted to provide Plaintiff the relief she requested with respect to public access to her case documents. The order provides:
Finally, we respond to Respondent's criticism that some of her filings are included in the public appellate case management system (C-Track) and some are not. This is a function of the design of the appellate case management system, not some scheme to shield some filings from public view. All public filings are available to the public, either online through C-Track or in person. Respondent desires that all of her filings be included on the public C-Track, which would obviate the need for Respondent to appear in person in the Clerk of Court's office. We agree with that request. Accordingly, we direct the Clerk of Court to notify the Court, within sixty days of the issuance of this order, if the C-Track system can be modified to place every matter Respondent is involved in on the C-Track Public Access within a reasonable time after filing.[ECF No. 21-1 at 16].
2. Judicial Immunity
To the extent any of Plaintiff's claims are not rendered moot, they are barred by judicial immunity. It is well established that judges have absolute immunity from claims arising out of their judicial actions. Mireless v. Waco, 502 U.S. 9, 12 (1991); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). Judicial immunity is a protection from suit, not just from ultimate assessment of damages, and such immunity is not pierced by allegations of corruption or bad faith. See Mireless, 502 U.S. at 11; see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.'”) (citation omitted). In Stump, the court clarified that “whether an act by a judge is a ‘judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” 435 U.S. at 362.
Plaintiff appears to allege Defendant lacked jurisdiction to consider the contempt action because the underlying order was issued outside the SCSC's authority under Article V of the South Carolina Constitution. [ECF No. 1 at 1]. Her argument reflects too narrow a reading of Article V.
The South Carolina Constitution defines the SCSC's jurisdiction as follows:
The Supreme Court shall have power to issue writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas corpus, and other original and remedial writs. The Court shall have appellate jurisdiction only in cases of equity, and in such appeals they shall review the findings of fact as well as the law, except in cases where the facts are settled by a jury and the verdict not set aside. The Supreme Court shall constitute a court for the correction of errors at law under such regulation as the General Assembly may prescribe.S.C. CONST. art. V, §5.
However, in addition to its other powers, “[t]he Supreme Court shall make rules governing the administration of all the courts of the State.” S.C. CONST. art. V, § 4. “Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts.” Id. The SCSC must submit rules and amendments to rules governing practice and procedure to the Judiciary of each House of the General Assembly, and the rules and amendments become effective after 90 days “unless disapproved by concurrent resolution of the General Assembly, with the concurrence of three-fifths of the members of each House present and voting.” S.C. CONST. art. V, § 4.A.
As the SCSC explained in its June 10, 2022 order, its constitutional authority to issue the order restricting Plaintiff's access to the court derived from Article V, Sections 4 and 5 and the South Carolina Appellate Court Rules. [ECF No. 21-1 at 13]. Specifically, Rule 269, SCACR provides:
Where an appeal, petition, motion or return is frivolous or taken solely for the purpose of delay, or is not in compliance with these Rules, the appellate court may upon its own motion or that of a party, after ten (10) days notice, impose upon offending attorneys or parties such sanctions as the circumstances of the case and discouragement of like conduct in the future may require.
The SCSC's September 27, 2017 order did not arise from an amorphous source, as Plaintiff was involved in litigation under the SCSC's Article V, § 5 jurisdiction. The SCSC appropriately issued the September 27, 2017 order and pursued sanctions for its violation in accordance with Rule 269, SCACR, which was enacted pursuant to the court's authority under Article V, § 4 and ratified pursuant to Article V, § 4.A. Therefore, Plaintiff's argument that the SCSC and Defendant lacked jurisdiction to pursue the contempt action fails.
Plaintiff also argues this court's decision in Brandt v. Ozmint, 664 F.Supp.2d 626 (D.S.C. 2009), affirmed by Brandt v. Gooding, 636 F.3d 124 (4th Cir. 2011), prohibited the SCSC from adjudicating the charge for contempt based on alleged violation of its prior order. [ECF No. 1 at 3]. Plaintiff's argument lacks merit. This case is distinguishable from Brandt because it was a habeas corpus case brought pursuant to 28 U.S.C. § 2254. Unlike in this case, the petitioner was not attempting to sue a judge. In Brandt, the court granted the petitioner's motion for summary judgment because his due process rights were violated, including his rights to counsel, notice, and the opportunity to be heard. The record before the court, as supplemented by Plaintiff, shows that she knowingly waived her right to counsel, was given significant advanced notice of the RTSC hearing, and had an opportunity to be heard in the contempt proceedings. See ECF No. 1 at 3 (indicating Defendant initiated the criminal contempt case on January 24, 2022); ECF No. 16 at 6-12 (transcript from Faretta hearing held on February 22, 2021); ECF No. 16 at 13-54 (RTSC hearing transcript dated March 22, 2022). Therefore, the court's decision in Brandt provides no support for Plaintiff's claims.
To the extent any of Plaintiff's claims in this action were not rendered moot by the RTSC hearing, the SCSC's subsequent order finding her in contempt, and her service of the imposed sentence, the undersigned recommends the court find Defendant's judicial immunity bars them from proceeding.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the case without leave for amendment.
IT IS SO RECOMMENDED.
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).