Opinion
C. A. 9:22-3249-SAL-MHC
08-02-2023
Fred Freeman, Plaintiff, v. Kelly B. Arnold, Deborah S. McKeown, Barbara W. Hinson, Judge Maite Murphy, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by a state prisoner. 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 initially submitted a letter that was filed as the Complaint in this action. ECF No. 1. In an order dated November 4, 2022, Plaintiff was directed to complete a standard complaint form (Complaint for Violation of Civil Rights (Prisoner Complaint) and to provide other necessary documents to bring his case into proper form. ECF No. 3. Plaintiff submitted a completed complaint form (ECF No. 1-2), that was filed as an attachment to ECF No. 1 to create one docket entry to be known as the Complaint. Because Plaintiff failed to provide all necessary documents to bring his case into proper form, a second proper form order was issued on December 22, 2022. ECF No. 11. Plaintiff later provided the necessary documents to bring his case into proper form.
Review of Plaintiff's Complaint with attachments revealed that the action was subject to summary dismissal. In an Order (ECF No. 19) dated June 15, 2023, Plaintiff was notified of pleading deficiencies and given the opportunity to amend his Complaint. On July 5, 2023, Plaintiff filed an Amended Complaint (ECF No. 22).
I. BACKGROUND
Records from Berkeley County indicate that on October 9, 2015, Plaintiff was arrested on charges of burglary-first degree, armed robbery, possession of a weapon during a violent crime, and possession of a firearm or ammunition by a person convicted of a violent felony (case numbers 2015A0820200784, 2015A0820200785, 2015A0820200786, and 2015A0820200787). The charges were disposed as “dismissed not indicted” on December 9, 2015. On December 4, 2015, Plaintiff appears to have been rearrested on the same four charges. Plaintiff was found guilty at trial as to the December 2015 charges of burglary-first degree and possession of a weapon during a violent crime (case numbers 2015A0820201015 and 2015A0820201017). On August 29, 2017, he was sentenced to forty-five years' imprisonment on the burglary charge and five years' imprisonment (concurrent) on the weapons charge. On August 30, 2017, the other two charges (2015A0820201016 and 2015A0820201018) were dismissed with the notation “nolle prosequi indicted.” See Berkeley County 9th Judicial Circuit Public Index, https://publicindex.sccourts.org/ Berkeley/PublicIndex/PISearch.aspxPISearch.aspx (last visited July 31, 2023).
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).
In his Amended Complaint, Plaintiff bring claims under 42 U.S.C. § 1983 (§ 1983) and generally alleges that his statutory and constitutional rights were violated. See ECF No. 22 at 4. He contends that Defendant Judge Matie Murphy (Judge Murphy) violated his rights at his criminal trial by allowing the jury to learn about Plaintiff's prior armed robbery convictions. Plaintiff claims that he does not have any prior convictions for armed robbery. Id. at 5. Plaintiff appears to allege that Defendants Kelly B. Arnold (Arnold), an attorney at the South Carolina Office of Disciplinary Counsel; Deborah McKeown (McKeown), an attorney at the South Carolina Commission of Counsel; and Barbara W. Hinson (Hinson), an administrative assistant at the South Carolina Commission of Counsel, committed fraud because they failed to rectify the alleged fraud at trial after Plaintiff complained to them in 2022. Id. at 4, 6.
For relief, Plaintiff requests “criminal contempt of court against Judge, for committing fraud and against the administrat[ion] of Justice.” He also asks for an award of “[t]wo million five hundred thousand dollars, against disciplinary counsel and commission of counsel[.]” ECF No. 22 at 7.
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
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Failure to State any Federal Claim Against Defendants Arnold, McKeown, and Hinson
Although Plaintiff lists the names of Defendants Arnold, McKeown, and Hinson in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that these Defendants violated his federal constitutional or statutory rights. See Bell Atl. 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'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”). Plaintiff merely alleges that Arnold, McKeown, and Hinson refused to adjudicate fraud and has alleged no facts to indicate that they violated any of Plaintiff's federal constitutional or statutory rights.
It is unclear what authority or duty Hinson, identified by Plaintiff as an administrative assistant (not an attorney), had to adjudicate any alleged fraud.
Plaintiff claims that his “statutory rights, equal rights, civil rights, constitutional rights” were violated, but he fails to allege any facts to indicate what rights were allegedly violated. He cites 28 U.S.C. § 1343 that grants federal courts jurisdiction over claims brought pursuant to 42 U.S.C. § 1985, which authorizes a cause of action for civil conspiracy claims motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus,” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). However, Plaintiff has at most alleged conspiracy in a conclusory manner and has alleged no supporting facts. The Fourth Circuit has “specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner,” absent concrete supporting facts. See Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995).
B. Judicial Immunity/Judge Murphy
Judge Murphy is entitled to summary dismissal because, based upon the facts alleged, she is 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 h[er] 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). Here, Plaintiff appears to allege that Judge Murphy violated his rights by allowing the jury to hear evidence that he had prior convictions for armed robbery. Such allegations involve this Defendant's judicial actions and thus she is entitled to judicial immunity. Further, “[a] judge will not be deprived of immunity because the action [s]he took was in error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356-357. 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.
Plaintiff contends that Judge Murphy should not have allowed the jury to hear evidence of armed robbery convictions because he alleges he has no such convictions. In a recent order of dismissal (dated June 22, 2023) in Plaintiff's post-conviction relief case in Berkeley County, it was noted that the trial court read the following stipulation to the jury:
One of the statutory elements that the State may elect to prove beyond a reasonable doubt to convict the Defendant of burglary in the first degree, is that the Defendant has two or mor[e] convictions for burglary on his record.. the State and the defense have agreed to stipulate that this Defendant's prior record does, in fact, contain two prior convictions for burglary....Freeman v. State of South Carolina, No. 2019-CP-08-2558 (emphasis added). Plaintiff appears to be attempting to argue that he was not guilty of burglary-first because he did not have armed robbery convictions. However, under South Carolina law, a person is guilty of burglary in the first degree “if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either” he is “armed with a deadly weapon[,]” when effecting entry, in the dwelling, or in immediate flight or that the burglary “is committed by a person with a
C. Prosecutorial/Quasi-Judicial Immunity - Defendants Arnold and McKeown
To the extent attorneys Arnold and McKeown were functioning in the role of prosecutors as to Plaintiff's alleged claims, these Defendants are entitled to prosecutorial immunity. Prosecutors are absolutely immune from suits for money damages for conduct in or connected with judicial proceedings. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Nivens v. Gilchrist, 444 F.3d 237, 250 (4th Cir. 2006). The immunity extends to state bar officials performing a disciplinary role. See Imbler, 424 U.S. at 424-26 & n.24. As to Plaintiff's claims that involve the actions of any of these Defendants in connection with her role as part of the Office of Disciplinary Counsel, prosecutorial immunity applies such that that Defendant should be summarily dismissed as a party to this action. See Polidi v. Bannon, 226 F.Supp.3d 615, 620-21 (E.D. Va. 2016); Hixon v. King, No. 822CV01240DCCKFM, 2022 WL 2308972 (D.S.C. May 31, 2022), report and recommendation adopted, 2022 WL 2307866 (D.S.C. June 27, 2022).
Courts within this district have also held that disciplinary counsel enjoy absolute quasi-judicial immunity in the performance of their duties. See Kimner v. South Carolina, No.: 3:21-3776-CMC-SVH, 2022 WL 465071, at *3 (D.S.C. 2022), report and recommendation adopted, 2022 WL 463380 (D.S.C. 2022); Couram v. S.C. Dep't of Motor Vehicles, No. 3:15-4870-MBS-PJG, 2016 WL 4204070, at *3 (D.S.C. 2016); Whitner v. Coggiola, No. 3:12-1876-CMC-JDA, 2012 WL 4051121, at *4 (D.S.C. 2012), report and recommendation adopted, 2012 WL 4051185, at *3 (D.S.C. 2012), aff'd, 508 Fed.Appx. 195 (4th Cir. 2013); see also Hirsh v. Justices of Supreme Court of California, 67 F.3d 708, 715 (9th Cir. 1995); Simons v. Bellinger, 643 F.2d 774, 775 (D.C. Cir. 1980); Hunter v. Virginia State Bar, 786 F.Supp.2d 1107, 1112 (E.D. Va. 2011). Plaintiff alleges claims against Defendants Arnold and McKeown as to the performance of their duties as disciplinary and/or Commission counsel such that they are entitled to quasi-judicial immunity as to the facts alleged.
Additionally, Commission counsel and disciplinary counsel are granted, under South Carolina Supreme Court rules, “absolute immunity from civil suit for all conduct in the course of their official duties.” See S.C. App. Ct. R. 413, Rule 13. While the grant of absolute immunity under South Carolina Supreme Court Rules to bar disciplinary staff is not binding on this Court for claims arising under federal statutory and constitutional law, it may be appropriate to consider this standard in weighing a claim of absolute immunity for bar disciplinary officials under federal law. This is particularly true where bar disciplinary counsel play a critical role in the State's quasi-judicial proceedings involving lawyer discipline. See, e.g., Marshall v. Ninth Cir. Solicitor's Off., No. 2:20-2993-RMG, 2022 WL 2155310, at *1-2 (D.S.C. June 15, 2022).
D. Heck/Younger
Additionally, to the extent Plaintiff is attempting to obtain monetary damages as to his criminal convictions, his claims are subject to summary dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court established the following test to determine whether a prisoner's claim for violation of due process in the context of a criminal proceeding is cognizable under § 1983:
Plaintiff's requested relief that criminal contempt charges be pursued against Defendant Judge Murphy has no basis in law. Plaintiff cannot have this Court prosecute criminal charges against a defendant as “[n]o citizen has an enforceable right to institute a criminal prosecution.” Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“In American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”)). Further, prosecutorial discretion does not reside in the judicial branch. The decision whether or not to prosecute, and what charge to file or bring, generally rests within the prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Heck, 512 U.S. at 486-487 (internal footnotes omitted). Plaintiff has not alleged that any of the challenged criminal convictions have been overturned through a direct appeal, state post-conviction relief application, or habeas proceeding or that they have otherwise been invalidated.
Moreover, to the extent any of Plaintiff's criminal cases are still pending (including any post-conviction relief proceedings or appeal of such) and Plaintiff is requesting that this Court intervene in a pending criminal case, such a request is subject to summary dismissal. Federal courts, absent extraordinary circumstances, are not authorized to interfere with a State's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989); Howell v. Wilson, No. 4:13-cv-2812-JFA-TER, 2014 WL 1233703, at *3 (D.S.C. Mar. 25, 2014) (explaining that a PCR application is still part of a “pending criminal case as that terminology is understood under Younger and its progeny”) (internal quotation marks and citations omitted). Specifically, the Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44.
E. State Law Claims
Plaintiff appears to assert claims for fraud under South Carolina law. However, any state law claims should be dismissed. As Plaintiff fails to establish federal jurisdiction and fails to state any federal claim, only his 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). In this case, Plaintiff and Defendants are all citizens of South Carolina. See ECF No. 22 at 2-3.
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 prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
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).
prior record of two or more convictions for burglary or housebreaking or a combination of both[.]” S.C. Code Ann. § 16-11-311 (emphasis added). Moreover, the issue of whether the South Carolina trial court inadmissibly allowed evidence of an armed robbery conviction or convictions does not affect the recommendation that this action be dismissed for the reasons discussed in this report and recommendation including that Judge Murphy be dismissed from this action because she is entitled to judicial immunity.