Opinion
C/A 4:22-00997-JDA-MHC
03-14-2024
Bakha Yawuti El, Plaintiff, v. City of Myrtle Beach, City of Myrtle Beach Police Department, David Giosa, L. Boyles, Amy Sutter, Joi Page, Brenda Bethune, Jennifer Peters-Wilson, John Scott Long, M. Winners, State of South Carolina, Defendants.
REPORT AND RECOMMENDATION (PARTIAL SUMMARY DISMISSAL)
Molly H. Cherry, United States Magistrate Judge.
This is a civil action filed by Plaintiff Bakha Yawuti El, a pro se litigant. 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 is formerly known as Brandon Christopher Myers.
A Proper Form Order, that also gave notice to Plaintiff about material deficiencies in his Complaint, was issued on June 1, 2022. ECF No. 7. Plaintiff filed an Amended Complaint on September 19, 2022. ECF No. 17. Because Plaintiff failed to provide all documents necessary to bring his case into proper form, a Second Proper Form Order was issued on September 21, 2022. ECF No. 22. Plaintiff partially complied with the Proper Form Orders, and his case is now in substantially proper form.
Plaintiff filed an appeal of the Proper Form Order to the District Court Judge, which was affirmed on August 22, 2023. Plaintiff appealed to the Fourth Circuit Court of Appeals which dismissed the appeal for lack of jurisdiction. See ECF No. 35, 39 (USCA mandate and judgment).
I. BACKGROUND
Plaintiff alleges claims concerning a traffic stop, his arrest on unspecified charges, his detainment, and criminal proceedings thereafter. See ECF No. 17 at 1-4. Defendants are the City of Myrtle Beach (the City); the City of Myrtle Beach Police Department (MBPD); Myrtle Beach Police officers David Giosa (Giosa), L. Boyles (Boyles), and M. Winners (Winners); City of Myrtle Beach Municipal Court Clerk Amy Sutter (Sutter); City of Myrtle Beach Assistant City Attorney Joi Page (Page); City of Myrtle Beach Mayor Brenda Bethune (Bethune); City of Myrtle Beach Municipal Court Judges Jennifer Peters-Wilson (Wilson) and John Scott Long (Long); and the State of South Carolina. See ECF No. 17 at 8-10. Plaintiff lists ten causes of action including false imprisonment (two causes of action), assault and battery, excessive force, abuse of process (four causes of action), malicious prosecution, and civil conspiracy. ECF No. 17 at 4-8.
Plaintiff also filed another case with many of the same facts and Defendants as this case, but with different causes of action. In his other case, Plaintiff alleged claims titled slavery, apartheid, genocide, peonage, and defamation/slander of title. That case was dismissed on October 19, 2023. See El v. City of Myrtle Beach, No. 4:22-cv-00998-DCN-MHC (D.S.C.).
Plaintiff appears to claim that on October 29, 2021, while traveling in his automobile in Myrtle Beach, he was stopped by Defendants Giosa, Boyles, and/or Winners. He alleges that one or more of these three Defendants “forcefully grabbed[,] battered, handcuffed, [and] removed Plaintiff far away from the automobile using unnecessary force[.]” Plaintiff appears to allege that one or more of these Defendants illegally searched his automobile. He also claims that one or more of these Defendants illegally arrested him and had him detained at the Myrtle Beach City Jail. It appears that Plaintiff is bringing claims for false imprisonment, assault and battery, the use of excessive force, and abuse of process against Defendants Giosa, Boyles, and/or Winners. See ECF No. 17 at 1-2, 4-6.
In Plaintiff's fact section, it is unclear which officer or officers took the alleged actions as Plaintiff writes “Giosa and L Boyles or M. Winners” in multiple places. See ECF No. 17 at 1.
Plaintiff claims that Defendant Judge Long set a bond “in the amount of thousands of U.S. federal reserve notes against Plaintiff's estate in order to secure Plaintiff's release, in spite of Plaintiff's invocation and reservation of rights in regard to bail bonds and finance, secured by the 8th amendment and Article 1 Section 10 of the U.S. Constitution respectively, constituting an abuse of process.” He appears to allege that this constituted abuse of process by Defendant Judge Long. ECF No. 17 at 2, 5-6.
Plaintiff claims that he “refused” the tickets/citations and returned them to Defendant the City on November 3, 2021. He also appears to allege that he requested what appears to be discovery items from the City. Under his cause of action for malicious prosecution, Plaintiff claims that the City has “since dismissed and expunged all charges at the cost of the court.” ECF No. 17 at 2, 7.
Plaintiff has not provided further information as to what he was charged with, but it appears that he is asserting that all charges stemming from the alleged incidents have been dismissed and expunged. To the extent that Plaintiff has any pending criminal action in state court that is related to the alleged incidents, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 (1971), and its progeny preclude this Court from interfering with the ongoing proceedings as Plaintiff can raise these issues in the state court proceedings. Additionally, to the extent that Plaintiff is attempting to appeal the results of South Carolina court actions related to the alleged incidents, this action is subject to summary dismissal. Federal district courts do not hear “appeals” from state court actions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983) (a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see also Hulsey v. Cisa, 947 F.3d 246, 250 (4th Cir. 2020) (noting that “the Rooker-Feldman doctrine is ‘confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.'”) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). To rule in favor of Plaintiff on claims filed in this action may require this court to overrule and reverse orders and rulings made in the state court. Such a result is prohibited under the Rooker-Feldman doctrine. Davani v. Virginia Dep't. of Transp., 434 F.3d 712, 719-720 (4th Cir. 2006); see Exxon, 544 U.S. at 293-294; Jordahl v. Democratic Party of Va., 122 F.3d 192, 201 (4th Cir. 1997).
Plaintiff alleges that he forwarded a copy of a “writ filed” to Defendant Mayor Bethune on December 7, 2021. He claims he gave her notice by email of alleged process abuses by Defendants Sutter, Page, and Judge Wilson. ECF No. 17 at 2.
Plaintiff claims that on December 7, 2021, Defendants Sutter, Page, and Judge Wilson held a trial in his absence and “collectively participated in the issuance of a Bench Warrant.” ECF No. 17 at 2. He alleges that these three Defendants were present at a motion to lift bench warrant hearing on February 9, 2022. After alleged arguments and exchanges between Plaintiff and Judge Wilson, Judge Wilson supposedly stated that the bench warrant was lifted and she was not going to schedule a rule to show cause hearing. Id. at 2-4.
Sutter allegedly emailed Plaintiff another court summons reopening an unidentified case on an unspecified date. On unknown dates, Sutter and Page allegedly refused to provide a copy of a video of the motion to lift bench warrant conference. ECF No. 17 at 4. Plaintiff claims that he filed an “Order and Notice of Order to Dismiss” on March 16, 2022, and that Defendants Page and Sutter allegedly “disregarded the lawful order set a rescheduled hearing, in contravention of due process of law.” Id. (errors in original). He appears to contend that Defendants Sutter, Page, and Wilson's actions constituted abuse of process. Id. at 6-7. Plaintiff also appears to assert that the “collective participation” of all Defendants constituted civil conspiracy. Id. at 7-8.
It is unclear, but this appears to be a document that Plaintiff supposedly created, not a judge's order.
Plaintiff asserts federal question jurisdiction under 28 U.S.C. § 1331 and brings his claims under 42 U.S.C. § 1983 (§ 1983). He alleges that Defendants violated his rights under Article 1, Section 10 of the United States Constitution and the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments. Plaintiff also contends that Defendants violated his rights under 18 U.S.C. §§ 241 and 242. ECF No. 17 at 10. He claims he “suffered a series of injuries including property damage, emotional distress, property theft, mental anguish, psychological damage, damaged reputation, loss of wages, public humiliation, and harassment.” Id. at 8. Plaintiff requests an award of $200,000,000. Id.
II. STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint herein pursuant to the procedural provisions of § 1915, 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).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 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
For the reasons discussed below, it is recommended that Defendants the City, MBPD, Sutter, Page, Mayor Bethune, Judge Wilson, Judge Long, and the State of South Carolina be dismissed as Defendants to this action. Plaintiff's claims should be served on Defendants Giosa, Boyles, and Winners.
A. Failure to State a Claim/Frivolous Claims
Plaintiff fails to state a cognizable claim against Defendants MBPD, the State of South Carolina, the City, and Mayor Bethune. Plaintiff has made no plausible allegations against these Defendants (and makes no allegations at all against Defendants MBPD and the State of South Carolina). Thus, Plaintiff's Amended Complaint as to these Defendants is in violation of the directive in Federal Rule of Civil Procedure 8(a) that pleadings shall contain “a short and plain statement” of the basis for the court's jurisdiction and of the basis for a plaintiff's claims against the defendant. See Bell Atlantic 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.'”). Plaintiff does not state with particularity what each of these Defendants did to him as to his causes of action and how those actions harmed him. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.”).
Although Plaintiff asserts that he forwarded a copy of a writ to Mayor Bethune to give her notice of alleged abuse of process violations by Defendants Sutter, Page, and Judge Wilson, he fails to provide any allegations that Mayor Bethune took any of the alleged actions or that she supervised these Defendants. Nor has Plaintiff provided any facts to state a claim for supervisory liability under § 1983 for which a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)).
As to the City of Myrtle Beach, Plaintiff merely claims that he refused his tickets/citations and documented this in a “writ in the Nature of Quo Warranto[.]” ECF No. 17 at 2. However, “quo warranto is the prerogative writ by which the Government can call upon any person to show by what warrant he holds public office or exercises a public franchise” and, as such, “a private individual has no standing to institute such proceeding.” Awwad v. United States, No. 2:14cr163, 2016 WL 9240612, at *1 (E.D. Va. Aug. 12, 2016) (unpublished) (citing Newman v. United States ex rel. Frizzell, 238 U.S. 537, 545 (1915) (italics and quotation marks omitted)). Plaintiff has alleged no facts to indicate that he has a cause of action for refusing tickets, for a writ of quo warranto, or as to any request for what appears to be discovery that should have been requested in his criminal case, not through the City.
Additionally, to the extent Plaintiff is attempting to allege claims against the City or Mayor Bethune based on a theory of municipal liability, his claims fail. Under § 1983, municipal liability is limited to actions for which the municipality is “actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). Municipal liability under § 1983 applies to local government entities, including local government officials sued in their official capacities, only when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 & n.55 (1978); see also Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (noting that claims against public officials in their official capacities are claims against the government entity that employs the official). A local government entity is not liable under § 1983 “solely because it employs a tortfeasor.” Monell, 436 U.S. at 691. A policy or custom for which municipal liability can arise may be established in four ways:
(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifests deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 533 (4th Cir. 2022) (internal brackets omitted) (quoting Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003)). “Sporadic or isolated violations of rights will not give rise to Monell liability; only widespread or flagrant violations will.” Owens v. Balt. City State's Att'ys Off., 767 F.3d 379, 403 (4th Cir. 2014) (internal quotation omitted). Here, Plaintiff fails to allege facts to state a claim for municipal liability as to Defendants the City or Mayor Bethune.
B. Conspiracy Claims (28 U.S.C. §§ 241 and 242)
Plaintiff appears to be attempting to assert conspiracy claims against all Defendants pursuant to 18 U.S.C. §§ 241 and 242. However, such claims should be summarily dismissed because §§ 241 and 242 are criminal statutes that do not provide Plaintiff with 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 “intended to create a federal right”). Where, as here, criminal statutes bear “no indication that civil enforcement of any kind was available to anyone,” a civil complaint alleging violations of such statutes cannot be sustained as a matter of law. Cort v. Ash, 422 U.S. at 80. Courts have found no private right of action under §§ 241 (Conspiracy against rights) and 242 (Deprivation of rights under color of law). See United States v. Oguaju, 76 Fed.Appx. 579, 581 (6th Cir. 2003) (finding that the District Court properly dismissed claim filed pursuant to 18 U.S.C. §§ 241 and 242 because there is no private right of action under either of those criminal statutes); 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).
C. Claims under Article I, § 10; Eighth Amendment
Plaintiff appears to allege claims under “Article I, Section 10” and the Eighth Amendment as to the setting of his bond by Judge Long. These claims are subject to summary dismissal because Plaintiff fails to state a cognizable claim under this constitutional provision and has not stated an Eighth Amendment claim. Although the Eighth Amendment provides that “[e]xcessive bail shall not be required[,]” Plaintiff has alleged no facts to state any Eighth Amendment excessive bail claim based on a requirement that he post bail using United States currency/federal reserve notes.
To the extent Plaintiff may be attempting to assert an Eighth Amendment cruel and unusual punishment claim, a pretrial detainee cannot be subject to any form of “punishment,” such that the Eighth Amendment does not apply and instead any claims are considered under the Fourteenth Amendment. See Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021).
Plaintiff does not specify which clause and/or part of Article I, Section 10 of the United States Constitution he brings his claims. He may be attempting to allege that the setting of his bond in “U.S. federal reserve notes” violated the provision that “[n]o State shall.. .make any Thing but gold and silver Coin a Tender in Payment of Debts[.]” U.S. Const. art. I, § 10, cl. 1. However, any claim that only gold or silver coins are proper payment for a bond is without merit because federal reserve notes have been made legal tender by virtue of 31 U.S.C. § 5103 (“United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues.”). This statute does not violate article I, § 10 of the United States Constitution, “because the statute was enacted by Congress, not a state.” Milbeck v. George, No. 23-CV-525-WMC, 2023 WL 7709392 (W.D. Wis. Nov. 15, 2023); Froehlke v. Homecomings Fin. Network, Inc., No. EDCV 13-1868 JGB (DTBx), 2013 WL 12120216, at *2 (C.D. Cal. Dec. 4, 2013) (arguments that money not backed by “gold and silver coins” is not lawful money are frivolous) (citing cases). Moreover, numerous courts have rejected arguments that gold and silver are the only legal tender in the United States. See, e.g., United States v. Condo, 741 F.2d 238, 239 (9th Cir. 1984) (theory that federal reserve notes are not valid currency is frivolous); Foret v. Wilson, 725 F.2d 254, 254-55 (5th Cir. 1984) (argument that gold and silver is the only legal tender in United States “is hopeless and frivolous”); Allen v. Lindsay, No. 5:21-CV-05098, 2021 WL 3074420, at *7 (W.D. Ark. June 30, 2021), report and recommendation adopted, No. 5:21-CV-5098, 2021 WL 3074180 (W.D. Ark. July 20, 2021) (finding that the plaintiff, who appeared to argue claims under Article I, § 10, clause 1 as to the amount of his bail and the fact that it was payable in United States currency, failed to state any plausible claim); L.R. Nixon v. Phillipoff, 615 F.Supp. 890 (N.D. Ind. 1985) (finding that plaintiff misinterpreted art. I, §§ 8 and 10 of the Constitution, and holding that § 10 acts only to “remove from the states the inherent sovereign power to declare currency, thus leaving Congress the sole declarant of what constitutes legal tender”).
D. Claims under the First, Ninth, and Tenth Amendments
Plaintiff lists the First, Ninth and Tenth Amendments as bases for federal question jurisdiction. However, he simply has not alleged any facts to indicate that any of the Defendants violated his First Amendment rights.
The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.U.S. Const. amend. I.
Nor has Plaintiff alleged any facts as state a Ninth Amendment claim. Moreover, any Ninth Amendment claim fails because it “has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation.” Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (rejecting Navy civilian engineer's Ninth Amendment claim arising out of allegedly improper investigation and discharge), cert. denied, 503 U.S. 951 (1992); see also Dyson v. Le'Chris Health Sys., Inc., No. 4:13-CV-224-BO, 2015 WL 134360, at *3 (E.D. N.C. Jan. 9, 2015) (the Ninth Amendment provides “no independent constitutional protection ... which may support a § 1983 cause of action.” (citations omitted)). “The Ninth Amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986); see also Wohlford v. U.S. Dep't of Agriculture, 842 F.2d 1293, 1988 WL 24281, at *1 (4th Cir. 1988) (unpublished table decision) (citing Strandberg).
The Ninth Amendment provides:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.U.S. Const. amend. IX.
Plaintiff has not alleged facts as to a Tenth Amendment claim. Additionally, any such claims should be dismissed because the Tenth Amendment “creates no constitutional rights cognizable in a civil rights cause of action.” Strandberg, 791 F.2d at 744; see also Stone v. City of Prescott, 173 F.3d 1172, 1175 (9th Cir. 1999) (“Plaintiffs cannot found a [§] 1983 claim on the Tenth Amendment because it is neither a source of federal authority nor a fount of individual constitutional rights.”).
The Tenth Amendment provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.U.S. Const. amend. X.
E. Judicial Immunity/Defendants Judge Wilson and Judge Long
Defendants Judge Wilson and Judge Long are additionally subject to summary dismissal because they are entitled to judicial immunity based on the facts alleged. It is well settled that judges have immunity from claims arising out of their judicial actions. 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).
Such immunity also applies to excessive bail claims. See Cannon v. Newport, 850 F.3d 303, 307 (7th Cir. 2017) (judicial immunity applied to claim that a judge set excessive bail); Franklin v. Warren Cty. D.A.'s Office, No. 1:08CV801(GLS/RFT), 2009 WL 161314, at *5 (N.D.N.Y. Jan. 21, 2009) (absolute judicial immunity barred excessive bail claim against judge because “[j]udges enjoy absolute immunity from personal liability for acts committed within their judicial jurisdiction” (citing Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994)). 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 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”). Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11.
F. Clerk of Court Immunity/Defendant Sutter
Defendant Amy Sutter, the Clerk of Court for the City of Myrtle Beach Municipal Court, should also be summarily dismissed because she is entitled to quasi-judicial immunity. See Briscoe v. LaHue, 460 U.S. 325, 334-35 (1983) (noting that quasi-judicial immunity accorded to individuals who play integral part in judicial process); Johnson v. Turner, 125 F.3d 324, 332 (6th Cir. 1997) (finding clerk's office employees, acting as a judge's designee, are entitled to quasijudicial immunity); Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001) (court clerks absolutely immune from actions for damages for charging excessive bail-action required under court order or at a judge's discretion). [C]ourt clerks enjoy derivative absolute judicial immunity when they act in obedience to a judicial order or under the court's direction. McCray v. Maryland, 456 F.2d 1, 5 (4th Cir.1972); see also Pink v. Lester, 52 F.3d 73, 78 (4th Cir.1995) (holding that causes of action against clerks of court for negligent conduct impeding access to the courts cannot survive).
G. Prosecutorial Immunity/Defendant Page
Defendant Page, who Plaintiff alleges was a prosecutor for the City of Myrtle Beach, is also subject to summary dismissal because she is 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 pretrial “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 Defendant Page based on Page's participation in Plaintiff's criminal proceedings, his claims against her 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”).
H. Defendant MBPD is Not a State Actor
Even if Plaintiff has alleged a claim against Defendant MBPD, it is entitled to summary dismissal as a party Defendant because this entity is not a “person” subject to suit under § 1983.A police department is a group of officers in a building and, as such, is not subject to suit under § 1983. Buildings and correctional institutions, as well as sheriff's departments and police departments, usually are not considered legal entities subject to suit. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a person pursuant to § 1983); Nelson v. Lexington Cnty. Det. Ctr., C/A No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that a building, a detention center, is not amenable to suit under § 1983 and that “Food Service Supervisors” was a group of people not subject to suit); see also Post v. City of Fort Lauderdale, 750 F.Supp. 1131 (S.D. Fla. 1990) (dismissing city police department as improper defendant in § 1983 action because not “person” under the statute); Shelby v. City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga. 1984) (dismissing police department as party defendant because it was merely the vehicle through which city government fulfills policing functions). The view that a municipal police department is not a legal entity subject to liability under § 1983 is in accord with the majority of federal courts that have addressed this issue. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504, 510 (D. Conn. 2008) (“[A] municipal police department is not subject to suit under section 1983 because it is not an independent legal entity.”); Terrell v. City of Harrisburg Police Dep't, 549 F.Supp.2d 671, 686 (M.D. Pa. 2008) (“It is well-settled that police departments operated by municipalities are not ‘persons' amenable to suit under § 1983.”); Gore v. Conway Police Dep't, No. 9:08-1806-RBH, 2008 WL 2566985 (D.S.C. June 26, 2008); Lyons v. Edgefield County Police, No. 8:05-2503-MBS, 2006 WL 3827501, at *3 (D.S.C. Dec. 28, 2006) (police department not a separate suable entity amenable to suit).
In order to state a cause of action under § 1983, a plaintiff must allege that: (1) “some person has deprived him of a federal right,” and (2) “the person who has deprived him of that right acted under color of state or [federal] law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167 (1961).
I. Eleventh Amendment Immunity
As noted above, Plaintiff fails to state any claim against Defendant the State of South Carolina. Additionally, the State of South Carolina is entitled to Eleventh Amendment immunity, which divests this court of jurisdiction to entertain a suit for damages brought against the State of South Carolina or its integral parts. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (18 also Will v. Michigan Dep't of State Police, 491 U.S. at 71 (holding that claims agains official for actions taken in an official capacity are tantamount to a claim against the stat While the United States Congress can override Eleventh Amendment immunity legislation, Congress has not overridden the States' Eleventh Amendment immunity in cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979). Further, although a State may itself to a suit in a federal district court, Pennhurst State School & Hosp. v. Halderman, 465 U.S & n. 9 (1984), the State of South Carolina has not consented to such actions. Rather, th Carolina Tort Claims Act expressly provides that the State of South Carolina does no Eleventh Amendment immunity, consents to suit only in a court of the State of South C and does not consent to suit in a federal court or in a court of another state. S.C. Code An 78-20(e).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Defendants Myrtle Beach, City of Myrtle Beach Police Department, Amy Sutter, Joi Page, Brenda B Jennifer Peters-Wilson, John Scott Long, and the State of South Carolina as Defendant action. The Amended Complaint should be served on Defendants David Giosa, L. Boyles, Winners.
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. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).