Opinion
C/A No.: 3:19-2482-JFA-SVH
09-20-2019
Michael Owen Harriot, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
Michael Owen Harriot ("Plaintiff"), proceeding pro se and in forma pauperis, filed this complaint against the United States of America ("Defendant") seeking damages under the Federal Tort Claims Act ("FTCA"). 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 and without issuance and service of process. I. Factual and Procedural Background
Plaintiff is a federal inmate incarcerated at Federal Correctional Institution Estill. [ECF No. 1-2]. On December 1, 2000, Plaintiff was convicted of offenses under 21 U.S.C. §§ 841(a)(1), 846, and 861(a) and 8 U.S.C. § 1326(a), and sentenced to life imprisonment. See USA v. Harriot, No. 3:99-cr-341-MBS- 3 (April 30, 2001).
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.") (citation omitted).
Plaintiff alleges that on July 24, 1999, Sheriff's deputies arrested him in Columbia, South Carolina at the direction of Federal Bureau of Investigation ("FBI") Agent Waizenhofer ("Agent"). Id. at 3. He claims he was subsequently transported to jail without a warrant or probable cause by two FBI special agents acting at the direction of Agent. Id. at 4. Plaintiff maintains Agent subsequently swore out a false criminal complaint in Case No. 3:99-MJ-481 on July 26, 1999, to conceal Plaintiff's original arrest from the Magistrate Judge and court. Id. He claims Agent admitted during a November 2000 suppression hearing that no arrest warrant existed prior to the July 24, 1999 arrest. Id. at 5. Plaintiff states there is no evidence in the record that an arrest warrant was issued. Id. at 4. He claims Assistant United States Attorney Stacey D. Haynes admitted in a reply to his § 2255 petition that Plaintiff had been arrested on July 24, 1999, but falsely stated Magistrate Judge Bristow Marchant had signed a warrant for Plaintiff's arrest on July 26, 1999. Id. at 5.
Plaintiff alleges he discovered Agent's "fraudulent concealment" while researching and reviewing cases in February 2018. He maintains he presented his administrative claims to the "appropriate FBI agency" through Standard Form 95 ("Form SF-95") on January 3, 2019, and requested the agency conduct an internal investigation, ascertain the legitimacy of his claims, and remit $15 million to him. Id. at 2. He claims FBI Chief Division Counsel Donald A. Wood returned the Form SF-95 to him on January 10, 2019, with a letter indicating the claim was not perfected. Id. He maintains he perfected the claim on January 22, 2019, by attaching copies of the criminal complaint in Case No. 3:99-MJ-481 and the indictment in Case No. 3:99-341. Id. He claims he received no response, despite having sent a follow up letter on July 22, 2019. Id. at 2-3.
Plaintiff requests Defendant compensate him for false arrest and imprisonment under the FTCA. [ECF No. 1 at 1]. He seeks damages of $15 million, appointment of counsel, and any other relief the court may provide. Id. at 9. II. Discussion
Plaintiff requests a "true certif[ied] copy" of Agent's criminal complaint in Case No. 3:99-MJ-481, as well as the arrest warrant in the case. [ECF No. 1 at 9]. Plaintiff is advised that he may request from the Clerk of Court copies of documents he is entitled to receive, but will be assessed the normal costs associated with obtaining those documents.
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's Claim Barred by Heck
Plaintiff's claims for damages for alleged false arrest and imprisonment are barred by the United States Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477 (1994). The Court stated the following:
We hold that, in 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.Id. at 486-87. Other courts have extended the Supreme Court's holding in Heck to cases brought pursuant to the FTCA. See e.g., O'Brien v. United States Federal Government, 763 Fed. App'x 157 (3d Cir. 2019) ("Furthermore, we discern no reversible error in the District Court's determination that Heck's favorable termination rule may not apply just to the Bivens claim, but to the FTCA and RICO claims in O'Brien's amended complaint as well."); Erlin v. United States, 364 F.3d 1127, 1133 (9th Cir. 2004) (holding that "a civil action under the Federal Tort Claims Act for negligently calculating a prisoner's release date, or otherwise wrongfully imprisoning the prisoner, does not accrue until the prisoner has established, in a direct or collateral attack on his imprisonment, that he is entitled to release from custody"); Parris v. United States, 45 F.3d 383, 385 (10th Cir. 1995) ("FTCA, like § 1983, is not an appropriate vehicle for challenging the validity of outstanding criminal judgments.").
In addressing a claim for damages, "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." Heck, 512 U.S. at 487. Judgment in Plaintiff's favor on his false arrest and imprisonment claims would necessarily imply the invalidity of his subsequent conviction. The court takes judicial notice that Plaintiff unsuccessfully challenged his conviction through direct appeal and collateral proceedings. See USA v. Harriot, No. 3:99-cr-341-MBS-3 (April 30, 2001), appeal dismissed, No. 01-4331 (4th Cir. Mar. 18, 2002); Harriot v. USA, No. 3:03-3299-MJP (D.S.C. September 19, 2005), appeal dismissed, No. 05-7704 (4th Cir. July 24, 2016). Because Plaintiff fails to demonstrate he has successfully challenged his convictions, Heck bars his claims. Therefore, the undersigned recommends these claims be summarily dismissed.
2. Denial of Request for Appointment of Counsel
Plaintiff is not entitled to appointed counsel. Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." Nevertheless, "it is well settled that in civil actions the appointment of counsel should be allowed only in exceptional cases." Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (citing United States v. Madden, 352 F.2d 792 (9th Cir. 1965)). A review of the complaint reveals no exceptional or unusual circumstances that would justify the appointment of counsel in this matter. 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.
Because Plaintiff's claims would ultimately fail if he were permitted to amend his complaint, the undersigned recommends the district judge order the dismissal with prejudice.
IT IS SO RECOMMENDED. September 20, 2019
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).