Opinion
C/A No.: 1:20-118-BHH-SVH
02-07-2020
Darrell Lee Goss, #305517, Plaintiff, v. United States of America, United States District Judge Bruce Howe Hendricks, United States Magistrate Judge Mary Gordon Baker, and United States Assistant Attorney General William Joseph Maye, Defendants.
REPORT AND RECOMMENDATION
Darrell Lee Goss ("Plaintiff"), proceeding pro se and in forma pauperis, filed this complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 (b), 2671-2680, against the United States of America ("USA"), United States District Judge Bruce Howe Hendricks ("Judge Hendricks"), United States Magistrate Judge Mary Gordon Baker ("Judge Baker"), and Assistant Attorney General William Joseph Maye ("AG Maye") (collectively "Defendants"). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the complaint with prejudice. I. Factual and Procedural Background
Although Plaintiff alleges AG Maye is a "United States Assistant Attorney General," it appears AG Maye is an assistant attorney general employed by the South Carolina Attorney General's Office. See Goss v. Williams, C/A No. 2:18-2938-BHH, ECF No. 117 (D.S.C. Jan. 31, 2020). Courts "may properly take judicial notice of matters of public record." Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). "We note that the most frequent use of judicial notice . . . is in noticing the content of court records." Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
Plaintiff is a state prisoner incarcerated at Lieber Correctional Institution. [ECF No. 1 at 2]. He attempts to bring suit on behalf of himself and his two minor children ("Minors"). Id. at 1.
Plaintiff's action pertains to a petition for a writ of habeas corpus ("habeas case") that he filed on or about October 27, 2018. Id. at 3. Plaintiff alleges Judge Baker and Judge Hendricks were assigned to the habeas case and AG Maye represents the state. Id. at 4. He claims AG Maye requested and Judge Baker granted two motions for extension of time to file the state's return to his petition. Id. at 5. He states AG Maye subsequently filed a motion to dismiss. Id. Plaintiff indicates he filed both a response in opposition to the motion to dismiss and a motion for summary judgment, and AG Maye filed a response in opposition to his motion for summary judgment. Id. at 5-6. He notes Judge Baker issued a report and recommendation on June 19, 2019, recommending the court grant the state's motion to dismiss and deny his motion for summary judgment. Id. at 6. He claims he filed objections to the report and recommendation on June 26, 2019, and a motion to expedite the court's ruling or, in the alternative, to release him on bail, on October 2, 2019. Id. He alleges Judge Hendricks has failed to issue a decision. Id. at 6-7. He claims USA is liable for the grossly negligent actions of its employees. Id. at 14.
The court takes judicial notice of the record in Plaintiff's habeas case, showing Judge Hendricks issued an order adopting the report and recommendation on January 31, 2020. See Goss v. Williams, C/A No. 2:18-2938-BHH, ECF No. 117 (D.S.C. Jan. 31, 2020). To the extent Plaintiff's complaint may be construed as a petition for a writ of mandamus, Judge Hendricks's decision renders it moot.
Plaintiff generally claims Defendants violated his and Minors' rights under the state and federal constitutions and laws through their actions that caused an allegedly unreasonable delay in receiving a decision in his habeas case. Id. at 7-13. He attempts to raise the following as causes of action: suspension of the privilege of the writ of habeas corpus, access to the courts, retaliation, due process, equal protection, speedy relief, abuse of process, cruel and unusual punishment, free exercise of religion, civil conspiracy, intentional infliction of emotional distress, and gross negligence. Id.
Plaintiff claims the alleged unreasonable delay of a decision in his habeas case caused him unlawful, oppressive incarceration and anxiety and concern as to the outcome of the petition, interfered with his relationships with family and friends, and impaired the viability of his defense in the event of a retrial. Id. at 9. He further claims Defendants' actions deprived him and Minors of life, liberty, property, and the pursuit of happiness; caused him to lose wages; and resulted in stress, depression, anxiety, sadness, madness, high blood pressure, migraine headaches, eye pain, chest pain, stomach pain, muscle pain, joint pain, loss of appetite, loss of sleep, loss of energy, loss of interest, loss of exercise, and loss of hair. Id. at 13-14. He claims Defendants are liable for damages under the FTCA and the South Carolina Tort Claims Act("SCTCA"), S.C. Code Ann. § 15-78-10, et seq. Id. at 10, 12, 13. He requests the court (1) declare Defendants violated his rights under the federal and state constitutions and statutes and (2) award compensatory and punitive damages. Id. at 2, 14. II. Discussion
A. Standard of Review
Plaintiff filed his complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Plaintiff Unable to Litigate Claim on Behalf of Minors
"[N]on-attorney parents generally may not litigate the claims of their minor children in federal court." Myers v. Loudoun Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005); see also M.D. v. School Bd. of City of Richmond, 560 Fed. App'x 199, 202 (4th Cir. 2014) ("To ensure minors' rights are vigorously and competently protected, we have squarely held that non-attorney parents are barred from representing their children in federal court.").
As a non-attorney, Plaintiff lacks the necessary skills to competently and vigorously protect Minors' legal rights in federal court. Thus, Plaintiff may not bring suit on behalf of Minors, and the undersigned recommends the district judge summarily dismiss all claims as to Minors. Because Plaintiff is not permitted to represent Minors in this action, he is unable to cure the deficiency identified herein by amendment.
2. Judges Entitled to Absolute Immunity
It is well established that judges have absolute immunity from claims arising out of their judicial actions. Mireless v. Waco, 502 U.S. 9, 12 (1991); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). Judicial immunity is a protection from suit, not just from ultimate assessment of damages, and such immunity is not pierced by allegations of corruption or bad faith. See Mireless, 502 U.S. at 11; see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) ("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; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'") (citation omitted). In Stump, the court clarified that "whether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." 435 U.S. at 362.
The allegations in Plaintiff's complaint address actions taken by Judge Hendricks and Judge Baker in his habeas case. [ECF No. 1 at 5]. He appears to allege Judge Baker unreasonably delayed his habeas case by granting AG Maye's motions for extension, and Judge Hendricks unreasonably delayed his habeas case by failing to issue an order on the report and recommendation and rule on his motion as quickly as he desired. [ECF No. 1 at 5-7]. Plaintiff indicates he interacted with Judge Hendricks and Judge Baker in their official capacities and describes their actions as falling within the scope of those normally performed by judges. Therefore, the undersigned recommends the court summarily dismiss Plaintiff's claims as to Judge Hendricks and Judge Baker Judge Hendricks, as they are entitled to absolute judicial immunity.
3. AG Maye Entitled to Absolute Prosecutorial Immunity
Plaintiff appears to allege AG Maye unreasonably delayed a decision in his habeas case by filing two motions for extension of time to file the state's return to his habeas petition. [ECF No. 1 at 5]. Prosecutorial immunity bars Plaintiff's claims against AG Maye. "In Imbler v. Pachtman, 424 U.S. 409, 430-32 (1976), the Supreme Court held that prosecutors are absolutely immune for damages liability when they act as advocates for the State." Savage v. Maryland, 896 F.3d 260, 268 (4th Cir. 2018). Prosecutors act as advocates for the state when they "undertake acts in preparing for the initiation of judicial proceedings or for trial." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
AG Maye's actions that Plaintiff challenges were performed in his capacity as an advocate for the state preparing for trial. Therefore, absolute immunity shields AG Maye from liability for the alleged violations of Plaintiff's rights.
4. Failure to State Claim Under FTCA Against United States
Plaintiff asserts multiple alleged constitutional and statutory violations against Defendants and alleges USA is liable for the grossly negligent acts of its employees. [ECF No. 1 at 7-13, 14].
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and 'render[ed]' itself liable." Id. at 477 (citing Richards v. United States, 369 U.S. 1, 6 (1962). A claim is actionable under § 1346(b) if the claim is brought:
"[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."Id. (quoting 28 U.S.C. § 1346(b)).
Plaintiff's constitutional tort claims and allegations of violations under federal law are not cognizable under § 1346(b). See id. at 477-78 (providing a constitutional tort claim does not allege that the United States "would be liable to the claimant" as "a private person . . . in accordance with the law of the place where the act or omission occurred" because federal, as opposed to state law, "provides the source of liability for a claim alleging the deprivation of a federal constitutional right").
Plaintiff has also failed to meet the elements to show USA was grossly negligent in violation of the FTCA. "Gross negligence is the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not do." Clyburn v. Sumter Cty. Sch. Dist. No. 17, 451 S.E.2d 885, 887 (S.C. 1994). Because AG Maye is a state employee, as opposed to a federal employee, his actions are irrelevant to the inquiry. As to Judge Hendricks's and Judge Baker's actions, Plaintiff has not alleged that they consciously failed to do something that was incumbent upon them to do, as both considered the evidence and issued decisions in Plaintiff's habeas case. Plaintiff has also failed to allege Judge Hendricks or Judge Baker did anything intentionally that they should not do, as judges routinely grant motions for extension.
Similarly, Plaintiff's allegations do not support a cause of action for intentional infliction of emotional distress against USA. To maintain a claim for intentional infliction of emotional distress under South Carolina law, a plaintiff must allege:
(1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from her conduct;Hansson v. Scalise Builders of S.C., 650 S.E.2d 68, 70 (S.C. 2007). The facts alleged in Plaintiff's complaint and the judicial record establish Plaintiff filed his habeas case on or about October 27, 2018, Judge Baker issued a report and recommendation on June 19, 2019, and Judge Hendricks issued an order on January 31, 2020. ECF No. 1 at 3, 6; Goss v. Williams, C/A No. 2:18-2938-BHH, ECF No. 117 (D.S.C. Jan. 31, 2020). Thus, Plaintiff's habeas case remained pending for approximately 15 months prior to being finally decided. Because Plaintiff has alleged no conduct on the part of Judge Hendricks or Judge Baker that would objectively be considered "so extreme and outrageous as to exceed all possible bounds of decency," he has failed to support his claim for intentional infliction of emotional distress as to USA.
(2) the conduct was so extreme and outrageous so as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community;
(3) the actions of the defendant caused plaintiff's emotional distress; and
(4) the emotional distress suffered by plaintiff was so severe that no reasonable man could be expected to endure it.
In light of the foregoing, the undersigned recommends the court find Plaintiff has failed to state a cause of action under the FTCA against USA.
5. USA Not Liable Under SCTCA
Pursuant to S.C. Code Ann. § 15-78-40, "[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstance, subject to the limitations upon liability and damages, and exceptions from liability and damages, contained herein." The specific language of the statute addresses the liability of the state. Therefore, Plaintiff cannot properly bring a case against USA based on violation of the SCTCA. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the complaint with prejudice and without issuance and service of process.
IT IS SO RECOMMENDED. February 7, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).