Opinion
C. A. 2:21-03717-RMG-MHC
01-07-2022
Carlos A. Dennison, Plaintiff, v. Joanna K. Delany, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff, Carlos A. Dennison, an inmate at the MacDougall Correctional Institution of the South Carolina Department of Corrections, filed this action pursuant to 42 U.S.C. § 1983. 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 an Order dated December 17, 2021, Plaintiff was advised of pleading deficiencies and given an opportunity to amend his Complaint. See ECF No. 7. On January 3, 2022, Plaintiff filed an Amended Complaint. See ECF No. 10.
I. BACKGROUND
Plaintiff's allegations concern his state court appeal of his criminal convictions and his disagreement with Defendant Joanna K. Delaney, his appellate counsel, as to issue(s) to be raised on appeal. Plaintiff contends that Defendant violated his Fourth, Sixth, and Fourteenth Amendment rights. He claims that Defendant committed legal malpractice. ECF No. 10 at 5, 7. 1
Although Plaintiff wrote “S.C. Commission on Indigent Defense, Division of Appellate Defense” in the caption of his Amended Complaint, Plaintiff only lists Defendant Delaney in “The Defendant(s)” portion of the Amended Complaint. He specifically states that he does not intend for this entity to be a defendant, but he put this information in the caption to indicate where Defendant Delany works. See ECF No. 10 at 2-3.
Specifically, Plaintiff contends that the “purported signature on the original copy [of a warrant] is different from the purported signature on the Defendant[']s copy[.]” He asserts that this is a violation of S.C. Code § 17-13-140. Plaintiff appears to claim that the issuing judge's signature was forged on a warrant (or warrants). Plaintiff contends that Defendant was “careless and wrong” for not raising claims in his appeal about three pretrial motions he made, including his assertions that there was a defective warrant and the signatures allegedly had characteristics of forgery. He provides that he lost his appeal on September 15, 2021. ECF No. 10 at 7-9.
It is not known if Plaintiff has filed an application for post-conviction relief in the state court or otherwise exhausted his available state court remedies as to his criminal convictions.
Plaintiff may also be asserting that the warrant(s) and events as to his criminal cases violated South Carolina law, including S.C. Code §§ 16-13-10 (Forgery), 17-13-140 (Issuance, execution and return of search warrants for property connected with the commission of crime; inventory of property seized), and 16-9-10 (Perjury and subornation of perjury). He claims that the issuance of defective warrant(s) resulted in officers arresting and confining him in violation of S.C. Code. § 16-3-910 (Kidnapping). See ECF No. 10 at 8-9. Plaintiff requests monetary damages (actual and punitive), an “in court apology” from Defendant, and “for Defendant to get the Attorney General and others of power and authority to release [Plaintiff] from S.C.D.C. Compound[.]” Id. at 20.
Release from incarceration is not a remedy that is available in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas 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”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length of duration of confinement is within the core of habeas corpus).
Records from Georgetown County and the South Carolina Department of Corrections (SCDC) indicate that Plaintiff was found guilty on the charges of MDP - narcotic schedule drugs 2 3rd or subsequent offense (case number 2019-GS-22-00262) and of possession of cocaine-3rd offense (Case Number 2019-GS-22-00263). He was sentenced to two concurrent sentences of ten years' imprisonment. See Georgetown County Fifteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Georgetown/PublicIndex/PISearch.aspx [search case numbers listed above]; SCDC Inmate Report, https://public.doc.state.sc.us/scdc-public/ [search “Carlos Dennison”] (last visited Jan. 5, 2022).
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, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 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).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed 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), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint 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, 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”). 3
III. DISCUSSION
A. Defendant is Not a State Actor
Plaintiff alleges claims against Defendant as to her actions or inactions as his appointed counsel. However, Defendant is subject to summary dismissal because Plaintiff has not alleged facts to indicate that Defendant 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.”); Stroman v. S.C. Office of Appellate Def., 447 F.Supp.2d 515, 518 (D.S.C. 2005) (finding a public appellate attorney was not acting under state law and was entitled to dismissal).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff appears to disagree with the decisions or strategy of Defendant to not include certain arguments in the appeal of Plaintiff's criminal convictions. However, he has not made any allegations to plausibly show that Defendant exceeded the “traditional functions as counsel.” Polk Cty., 454 U.S. at 325; see also Trexler v. Giese, No. 3:09-cv-144-CMC-PJG, 2010 WL 104599, at *3 (D.S.C. Jan. 7, 2010) (finding attorney was entitled to summary dismissal in § 1983 action where attorney's representation in the state criminal case fell “squarely within the parameters of his legal representation” although the plaintiff was unhappy with the manner in which the attorney represented her). 4
B. No Private Cause of Action under Named Criminal Statutes
Plaintiff may also be attempting to bring claims under South Carolina criminal statutes (§§ 16-13-10, 16-9-10, and 16-3-910). However, he has not alleged any facts to establish that these criminal statutes create a private cause of action, and “[t]he Supreme Court historically has been loath to infer a private right of action from ‘a bare criminal statute,' because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group.” Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 80 (1975)); see Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (observing that enforcement of statutory violation under § 1983 requires showing that “Congress intended to create a federal right”) (emphasis in original). Additionally, a violation of state law does not provide the basis for a claim under § 1983. See Clark v. Link, 855 F.2d 156, 161-62 (4th Cir. 1988). Finally, it is noted that a private citizen such as Plaintiff has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (A private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person); Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (applying Linda R.S. v. Richard D. and collecting cases); Collins v. Palczewski, 841 F.Supp. 333, 340 (D. Nev. 1993) (“Long ago the courts of these United States established that ‘criminal statutes cannot be enforced by civil actions.'”).
C. Malpractice is not Actionable under § 1983
Plaintiff also alleges that Defendant committed legal malpractice. However, Plaintiff may not bring such a claim pursuant to § 1983. Although § 1983 provides a cause of action for the deprivation of federal constitutional and statutory rights under color of state law, it does not provide a cause of action for negligence. DeShaney v. Winnebago County Dept. of Social Servs., 5 489 U.S. 189, 200-203 (1989) (holding that § 1983 does not impose liability for violations of duties of care arising under state law). The United States Supreme Court has observed that to allow claims based on a theory of negligence would “trivialize the centuries-old principle of due process of law.” Daniels v. Williams, 474 U.S. 327, 332 (1986); see also Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995) (“Daniels' rejection of a theory of actionable negligence under the Due Process Clause is consistent with Supreme Court cases interpreting other provisions of the Constitution.”).
D. State Law Claims
To the extent that Plaintiff alleges claims, such as negligence or malpractice, under South Carolina law, such claims should be dismissed. As Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and Defendant are citizens of South Carolina. See ECF No. 10 at 2. Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367 ; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law 6 claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiffs Amended 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 Fed.Appx. 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).
Plaintiffs attention is directed to the important notice on the following page. 7
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). 8