Opinion
C. A. 2:21-02877-RMG-MHC
12-02-2022
Carlos A. Dennison, Plaintiff, v. J. Mark Hayes, Keith W. Powell, Jimmy A. Richardson, John Gregory, Noel Smith, Robert O'Donnell, Johnell Sparkman, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
This is a civil action filed by Plaintiff, Carlos A. Dennison, a state prisoner at the MacDougall Correctional Institution of the South Carolina Department of Corrections. 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. Plaintiff was advised of pleading deficiencies and given an opportunity to amend his Complaint (see ECF No. 7), and he filed an Amended Complaint (ECF No. 10).
I. BACKGROUND
In his Amended Complaint, Plaintiff contends that his Fourth and Fourteenth Amendment rights were violated by defendants. ECF No. 10 at 7. He also appears to allege claims under South Carolina state law. Id. at 11-16.
Plaintiff states he was arrested on five outstanding warrants on June 20, 2018, and that two additional warrants for contraband were issued at the time of his arrest. ECF No. 10 at 11. He appears to allege that he was falsely arrested by Defendants Georgetown City Police Officers John Gregory (Gregory) and Noel Smith (Smith). Id. at 4-5, 13-14.
During a trial, held from July 8 through 10, 2019, Plaintiff made a motion concerning an alleged defective arrest warrant, claiming that the warrant was defective “due to the signatures on the face of the warrant at the bottom where it states[,] ‘signature of issuing judge!![']” ECF No. 10 at 11. Plaintiff appears to allege that Defendant Georgetown Municipal Judge Robert O'Donnell (Judge O'Donnell) issued a warrant or warrants that had a forged signature. ECF No. 10 at 14. He states that the trial judge, Defendant South Carolina Circuit Court Judge Mark Hayes (Judge Hayes), denied his motion. The trial continued, Plaintiff was found guilty, and he received two concurrent ten-year sentences. Id. Plaintiff alleges that Judge Hayes had:
It is unclear if there is one or more than one warrant that Plaintiff alleges was defective. He has not identified which warrant(s) were allegedly defective.
knowledge of the crime of S.C. Statute 16-13-10 Forgery to S.C. Statute 17-3-140 Arrest Warrant form that did not give authorization for officers to arrest, s[ei]ze, confi[n]e or carry away without authorization of law. S.C. Statute 16-3-910 kidnap. Said Defendant deliberately with reckless disregard for the truth use the arrest warrants to prosecute Plaintiff.ECF No. 10 at 12.
Plaintiff claims that Defendant Georgetown Solicitor Jimmy Richardson (Richardson) and Assistant Solicitor Keith Powell (Powell) improperly used defective warrants to prosecute him. ECF No. 10 at 12-13. He also claims that Judge O'Donnell, Gregory, Smith, and Georgetown City Police Officer Johnell Sparkmen (Sparkmen) committed perjury in their testimony at trial as to the signatures on the warrant(s). Id. at 13-15.
As relief, Plaintiff requests that Defendants Powell and Richardson “file motions to have Plaintiff regain his liberty,” the Department of Justice investigate the Georgetown City Police Department Georgetown County Solicitor's Office, and the charges on the allegedly defective warrant be expunged. He also requests an award of monetary damages. ECF No. 10 at 18-19.
The Department of Justice is not a party to this action. Nor is there a right to an investigation or prosecution of others. See, e.g., Davis v. Decker, No. 4:13-CV-01500-RBH, 2013 WL 5934541, at *3 (D.S.C. Nov. 4, 2013) (“Plaintiff does not have a constitutional right to have police conduct an investigation or to have a specific outcome from a law enforcement investigation.”).
Records from Georgetown County and the South Carolina Department of Correctionsindicate that Plaintiff was found guilty on the charges of narcotic schedule drugs - 3rd or subsequent offense (case number 2019-GS-22-00262) and possession of cocaine - 3rd offense (Case Number 2019-GS-22-00263), and 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/inmateDetails.do?id =%2000295321 (last visited Nov. 30, 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).
The records show a true bill date in both of these cases of March 27, 2019.
Records from Georgetown County also indicate that Plaintiff filed a civil action in the Court of Common Pleas for Georgetown County against the Georgetown Sheriff's Office and others, including two Defendants to this action (Judge O'Donnell and Gregory) in which he alleged that Judge O'Donnell's name was forged and officers presented false testimony to obtain arrest warrants. The motion for summary judgment of the defendants in that action was granted on June 24, 2022. In the Order, it was noted:
It is clear from the portions of the criminal trial transcript reviewed by this Court that Judge Robert O'Donnell, Officer John Gregory and Officer Noel Smith all testified under oath at the criminal trial to the authenticity of the signatures on the warrants at issue and verified the signatures as their own. Plaintiff, defending himself pro se in the criminal trial had the opportunity and did cross examine these witnesses at the criminal trial of this matter... .Finally, Judge O'Donnell testified to the authenticity of his signature on the warrants at issue[]. Judge O'Donnell also testified to the authenticity of his signature stamp used on several of the bond documents in the matter [].Dennison v. Police Department Georgetown City, No. 2021CP2200158. Plaintiff filed a notice of appeal in that case on July 25, 2022.
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”).
III. DISCUSSION
A. Release from Prison not an Available Remedy under § 1983
Initially, it should be noted that to the extent Plaintiff is requesting he be released from prison (by having Defendants file motions for him to regain his liberty) or expungement of charges, these are not remedies available in a civil rights 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 or duration of confinement is within the core of habeas corpus); Grayson v. Gowdy, No. CA 0:08-3477-CMC-PJG, 2008 WL 5280337, at *2 (D.S.C. Dec. 18, 2008) (noting that a request that pending charges be expunged and dismissed was a type of relief that that may only be obtained in a habeas action). As such, if Plaintiff wishes to challenge the duration of his confinement, he must obtain habeas forms from the Clerk of Court and file a separate action, after he has fully exhausted his state court remedies.
Georgetown County records indicate that a notice of appeal was filed in case number 2019-GS-220262 on July 11, 2019.
B. False Arrest
Plaintiff may be attempting to allege that he was falsely arrested by Defendants Gregory and Smith because he believes that the signatures on an arrest warrant was forged. However, a claim for false arrest must allege that a warrantless arrest lacked probable cause. Smith v. Munday, 848 F.3d 248, 257 (4th Cir. 2017) (“A claim for false arrest alleges that a warrantless arrest lacked probable cause; a claim for malicious prosecution alleges that an arrest made pursuant to a warrant lacked probable cause.”); Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (“[A] claim for false arrest may be considered only when no arrest warrant has been obtained.”). Here, however, Plaintiff admits that he was arrested pursuant to warrants and thus he fails to allege warrantless arrest(s).
C. Malicious Prosecution
Plaintiff appears to allege that some of the Defendants maliciously prosecuted him. To state a Fourth Amendment claim under § 1983 for malicious prosecution, Plaintiff must allege (1) the defendant seized him pursuant to legal process (e.g., a warrant) not supported by probable cause and (2) the criminal proceedings have terminated in his favor. Smith, 848 F.3d at 253.
Here, Plaintiff has not stated a claim for malicious prosecution as to the charges on which he was convicted because he cannot show that the criminal proceedings terminated in his favor. A termination in Plaintiff's favor is one where “the criminal prosecution ended without a conviction.” Thompson v. Clark, 142 S.Ct. 1332, 1341 (2022). As noted above, Plaintiff was found guilty on these charges.
Additionally, Plaintiff cannot show that he was seized pursuant to legal process that was not supported by probable cause because he was indicted by the grand jury as to those charges. “[A]n indictment, ‘fair upon its face,' returned by a ‘properly constituted grand jury,' conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also El Bey v. Brown, No. 3:20-cv-2077-JMC-SVH, 2020 WL 5948335, at *2 (D.S.C. June 29, 2020) (“A grand jury indictment is affirmative evidence of probable cause sufficient to defeat claims for malicious prosecution and false arrest under § 1983.”), report and recommendation adopted, 2020 WL 4038267 (D.S.C. July 17, 2020); Odom v. Roberts, No. CA 6:12-2452-TMC-JDA, 2012 WL 4061679 (D.S.C. Aug. 27, 2012), report and recommendation adopted, 2012 WL 4059916 (D.S.C. Sept. 14, 2012) (same); Provet v. S.C., No. 6:07-cv-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (explaining § 1983 claims of false arrest and malicious prosecution were precluded based on the filing of an indictment). As noted above, Plaintiff was indicted on the charges for which he was convicted.
Indictments were also returned as to charges against Plaintiff in case numbers 2018A220200120, 2018A220200133, 2019GS2200264, and 2019GS2200265. See Georgetown County Public Index.
D. Defendants Judges Hayes and O'Donnell - Judicial Immunity
Defendants Judges Hayes and O'Donnell are subject to summary dismissal as party Defendants because, based upon the facts alleged, they are entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); 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.”); see also Siegert v. Gilley, 500 U.S. 226 (1991) (immunity presents a threshold question which should be resolved before discovery is even allowed). Further, “[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.” Stump, 435 U.S. at 356-57. Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11. Further, judicial immunity is not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that “immunity applies even when the judge is accused of acting maliciously and corruptly”).
E. Defendants Powell and Richardson - Prosecutorial Immunity
Defendants Powell and Richardson are subject to summary dismissal as party Defendants because they are entitled to prosecutorial immunity. Prosecutors have absolute immunity from damages 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). Therefore, because Plaintiff is attempting to assert claims against Defendants Powell and Richardson based on their participation in Plaintiff's criminal proceedings, his claims against them are barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”).
F. Witness Privilege
Plaintiff appears to also bring claims against Defendants Gregory, Smith, Judge O'Donnell, and Sparkmen based on their being witnesses at his criminal trial. However, these claims are subject to summary dismissal because a witness has absolute immunity from civil liability for testifying in judicial matters. Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983); see Day v. Johns Hopkins Health System Corp., 907 F.3d 766, 771-73 (4th Cir. 2018) (discussing Briscoe and noting that the “law affords absolute immunity to those persons who aid the truth-seeking mission of the judicial system. This protection extends to judges, prosecutors and witnesses”). Plaintiff's bare allegations alone are insufficient to overcome the immunity afforded to these Defendants as witnesses, so his claims against these Defendants are subject to summary dismissal.
G. South Carolina Statutes/Criminal Statutes/Criminal Prosecution
Plaintiff alleges that Defendants violated a number of South Carolina statutes (S.C. Code Ann. §§ 16-3-910, 16-9-10, 16-13-10, and 17-13-140). See ECF No. 10 at 11-16. However, such claims should be dismissed because a violation of state law does not provide the basis for a claim under § 1983 (or Bivens). See Clark v. Link, 855 F.2d 156, 161-62 (4th Cir. 1988).
Plaintiff claims that Defendants violated S.C. Statute § 17-13-140 (Issuance, execution and return of search warrants for property connected with the commission of crime; inventory of property seized) because they had knowledge of the form of the arrest warrant that did not give officers authorization to arrest him. However, Plaintiff's allegations concern arrest, not search, warrants and he has alleged no facts concerning the issuance of any search warrants as to the alleged incidents.
To extent that Plaintiff is attempting to bring a private cause of actions for alleged perjury (§ 16-9-10), forgery (§ 16-13-10), and/or kidnapping (§ 16-3-910) under South Carolina criminal statutes, he has alleged no facts to indicate that he may bring a private cause of action. “The 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”). South Carolina courts also recognize that there is no private right of action under a criminal statute unless the legislature intended for such a right to be created. Whitworth v. Fast Fare Markets of South Carolina, Inc., 338 S.E.2d 155 (S.C. 1985); see also Dorman v. Aiken Communications, Inc., 398 S.E.2d 687, 689 (S.C. 1990); Cionci v. Wells Fargo Bank, N.A., No. 921CV03175BHHMHC, 2022 WL 5237341, at *15 (D.S.C. July 19, 2022) (Noting that “there is nothing in the plain language of the forgery statute [§ 16-13-10] that ‘purports to establish civil liability[.]'”), report and recommendation adopted, 2022 WL 4298328 (D.S.C. Sept. 19, 2022). Additionally, a private individual 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); Diamondv. Charles, 476 U.S. 54, 64-65 (1986) (applying LindaR.S. v. RichardD. 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.'”).
H. State Law Claims
To the extent that Plaintiff may be attempting to assert claims 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 Defendants are all citizens of South Carolina. See ECF No. 10 at 3-6.
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 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 this action without issuance and service of process.
As noted above, Plaintiff was given an opportunity to amend, and he filed an amended complaint. It is recommended that this action be dismissed without further leave to amend and that the court enter a final decision in this case.
Plaintiff's attention is directed to the important notice on the following 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 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).