Opinion
C. A. 2:23-3863-RMG-TER
08-16-2023
Dominick Alexander Brown, #589190, Plaintiff, v. North Charleston City Police Department, Detective James Walley, Judge Samantha Vaughn, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pretrial detainee, 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).
Plaintiff's 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
Plaintiff's action is subject to dismissal for failure to state a claim upon which relief can be granted.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation and citation omitted). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff's Complaint is difficult to decipher. (ECF No. 1). Plaintiff appears to contest how his phone records were received by the police, which eventually resulted in his arrest for stalking his probation officer. (ECF No. 1). Plaintiff alleges conclusorily that his claims are “discrimination, invasion of privacy, and illegal search and seizure.” (ECF No. 1 at 6). Plaintiff suspects there was a “search warrant hearing” that he should have been present at prior to his arrest. (ECF No. 1 at 5). Plaintiff has attached a detailed warrant, affidavit, and the resulting phone records from AT&T. (ECF No. 1). Plaintiff alleges “no injuries sustained” and requests 7.6 million dollars in damages. (ECF No. 1).
First, Plaintiff sues the judge who signed the warrant, Defendant Vaughn. Plaintiff's claims against Defendant Vaughn are based on official participation and resulting judicial rulings made in relation to Plaintiff's criminal cases. Such claims 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). The doctrine of absolute immunity for acts taken by a judge in connection with his or her judicial authority and responsibility is well established and widely recognized. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judges are immune from civil suit for actions taken in their judicial capacity, unless “taken in the complete absence of all jurisdiction”); Stump v. Sparkman, 435 U.S. 349, 359 (1978) (“A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.”); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir.1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir.1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.”). Defendant Vaughn is subject to summary dismissal.
Second, Plaintiff sues a police department. Plaintiff's Complaint does not allege an unconstitutional policy, practice, or custom by Defendant North Charleston City Police Department. A municipality or other local government entity may only be held liable under 42 U.S.C. § 1983 “where the constitutionally offensive actions of [ ] employees are taken in furtherance of some municipal ‘policy or custom.' ” See Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Wolf v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 321 (4th Cir. 2009) (“A county may be found liable under 42 U.S.C. § 1983 [but] only ‘when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury.' ”) (citing Monell, 436 U.S. at 694). Plaintiff fails to identify any governmental policy or custom that caused his constitutional rights to be allegedly violated. Evidence of a single incident is insufficient to give rise to municipal liability under § 1983. S. Holdings, Inc. v. Horry Cnty., S.C., No. 4:02-1859-RBH, 2007 WL 896111, at *2 (D.S.C. Mar. 21, 2007). At most, Plaintiff attributes to North Charleston City Police Department, in a conclusory fashion, the alleged wrongful acts of one of its detective which does not state a claim as to North Charleston City Police Department. See Hensley v. Horry Cnty. Police Dep't, No. CV 4:19-602-RBH-KDW, 2019 WL 9667697, at *3 (D.S.C. Dec. 17, 2019), report and recommendation adopted, 2020 WL 2537452 (D.S.C. May 19, 2020). Further, North Charleston City Police Department is subject to summary dismissal because it is not a person amendable to suit for § 1983 purposes. See von Fox v. Charleston City Police Dep't, No. 2:16-CV-98-RMG-MGB, 2016 WL 8677189, at *4 (D.S.C. Feb. 12, 2016), report and recommendation adopted sub nom., 2016 WL 927154 (D.S.C. Mar. 7, 2016), dismissed sub nom. 668 Fed.Appx. 442 (4th Cir. 2016) (collecting cases summarily dismissing police departments).
As to Defendant Detective James Walley, Plaintiff alleges generally that a judge issued a search warrant directed at AT&T after a detailed affidavit from Walley about Plaintiff's stalking victim receiving text and voice messages from Plaintiff. (ECF No. 1). Plaintiff's allegations are that he did not know about the phone records being given to the police until he received his Rule 5 discovery; Plaintiff alleges he should have been present at a “search warrant hearing.” (ECF No. 1 at 5).
Plaintiff alleges in a conclusory manner that his claims are for “discrimination, invasion of privacy, and illegal search and seizure.” (ECF No. 1 at 6).
There are no factual allegations as to discrimination. There is no federal claim for invasion of privacy. To the extent liberally construed Plaintiff is attempting to pursue claims for defamation, libel, or slander under § 1983, there is no federal right of action for such claims. DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 200-203 (1989); Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988). Nothing in the First Amendment creates a private right of action for invasion of privacy; reputation is not a liberty or property interest sufficient to invoke due process protections.
In absence of any plausible federal question claim, there is no basis for the exercise of supplemental jurisdiction. See 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
As to Plaintiff's allegations regarding the AT&T phone records, in a case with similar factual allegations, this court found:
To the extent liberally construed that this search and seizure claim resulting eventually in arrest could be alleging claims for false arrest or malicious prosecution, a false arrest claim and a malicious prosecution claim would likewise be subject to summary dismissal. Under § 1983, “a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant.” Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)(internal citations omitted). The Fourth Circuit reiterated that “a false arrest claim must fail where it is made pursuant to a facially valid warrant.” Dorn v. Town of Prosperity, 375 Fed.Appx. 284, 286 (4th Cir. 2010) (internal quotations and citations omitted). Based on Plaintiff's allegations and filings and public records, he was arrested pursuant to a facially valid warrant, and any false arrest claims would be subject to summary dismissal. As to malicious prosecution, the Supreme Court of the United States held that “a Fourth Amendment Claim under § 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that the criminal prosecution ended without a conviction.” Thompson v. Clark, 142 S.Ct. 1332 (2022). Plaintiff here cannot show that his criminal prosecution has ended without a conviction as he is still detained on the contested charges.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. “Except in certain well-defined circumstances, a search or seizure ... is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 619 (1989). Plaintiff has failed to allege sufficient facts to establish the search of his phone records was objectively unreasonable.... See Franks v. Delaware, 438 U.S. 154, 171 (1978) (noting that warrants have a presumption of validity and any attack thereupon “must be more than conclusory.”).Brooks v. Berkeley Cnty. Sheriff's Off., No. 2:21-cv-4054-BHH-KDW, 2022 WL 18635126, at *4 (D.S.C. Sept. 1, 2022), report and recommendation adopted, 2023 WL 142394 (D.S.C. Jan. 10, 2023). Plaintiff has failed to state a claim upon which relief can be granted as Plaintiff has failed to allege plausible facts to establish that the search by judicial warrant of his phone records was objectively unreasonable.
Plaintiff's action is subject to summary dismissal for failure to state a claim upon which relief can be granted.
RECOMMENDATION
It is recommended that the District Court dismiss this action without prejudice under § 1915(e) and § 1915A and without issuance and service of process.
Dismissal without prejudice is recommended to facilitate pursuit in state court of any privacy claims and/or later pursuit of other claims in the event criminal charges are dropped and Plaintiff is not convicted.
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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).