Opinion
Civil Action No. 6:18-1762-MGL-KFM
10-29-2018
Erick Hewins, Plaintiff, v. Scott Gardner, Rachel Hall, and Sgt. Ben Cothran, Defendants.
REPORT OF MAGISTRATE JUDGE
The plaintiff, proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights, as well as state law claims. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the District Court.
PROCEDURAL BACKGROUND
The plaintiff was a pretrial detainee in the Greenville County Detention Center at the time of the filing of his complaint (doc. 1 at 2). A review of the public record indicates that the plaintiff was arrested on August 9, 2010, and charged with drug trafficking. See Greenville Cty. 13th Judicial Circuit Public Index, https://www2.greenvillecounty.org/SCJD/PublicIndex/PISearch.aspx (Enter the plaintiff's name, click on Case Numbers M383853, M383854). See also Philips v. Pitt Cty. Mem.Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."). Following a jury trial on January 16, 2013, he was sentenced to a term of imprisonment of 25 years. The record further reflects that on April 26, 2016, the plaintiff filed an application for post-conviction relief ("PCR"). On November 4, 2016, the PCR court granted the plaintiff a new trial based upon his claim of ineffective assistance of counsel. See Greenville Cty. 13th Judicial Circuit Public Index https://www2.greenvillecounty.org/SCJD/PublicIndex/CaseDetails.aspx? (Enter the plaintiff's name, click on Case Number 2016CP2302656). The state's appeal of the PCR court's ruling was denied. The state's petition for a writ of certiorari in the Supreme Court of South Carolina was likewise denied on May 3, 2018 (doc. 1 at 13). The plaintiff alleges he was then transferred from state prison back to the Greenville County Detention Center on June 7, 2018, to await his retrial. By order dated September 10, 2018, the Honorable Mary Geiger Lewis, United States District Judge, dismissed other named defendants and stayed the remainder of the case against the defendants Gardner, Hall, and Cothran while the plaintiff awaited resolution of his pending state criminal cases in the Greenville County Court of General Sessions (doc. 37).
By order dated October 12, 2018 (doc. 41), the undersigned notified the plaintiff that it had come to the court's attention that the plaintiff pleaded guilty in both underlying state cases on August 21, 2018. See Greenville County 13th Judicial Circuit Public Index, http://publicindex.sccourts.org/Greenville/Public/PISearch.aspx (Enter the plaintiff's name, click on M383853, M383854). As such, it appears that the underlying state cases have now been resolved. Accordingly, the plaintiff was ordered to file his written statement within ten days as to whether this case should remain stayed or now proceed for further judicial screening in light of the apparent resolution of his underlying state criminal cases. More than ten days have elapsed since the entry of this order, and the plaintiff has failed to timely file his written statement. Accordingly, the undersigned recommends that the stay imposed on September 10, 2018, be lifted.
It appears that on August 21, 2018, the plaintiff received a time-served sentence for his criminal convictions, as he is no longer in custody, and he provided the court with his new address on August 24
ALLEGATIONS
The plaintiff filed this action on June 27, 2018, alleging claims of abuse of process, malicious prosecution, false arrest, and false imprisonment arising out of his August 2010 arrest. (doc. 1 at 8). In the complaint, the plaintiff names as defendants Greenville City Police Officers Scott Gardner, Rachel Hall, and Sgt. Ben Cothran. He states that he is suing the defendants in their official and personal capacities. The plaintiff alleges that he was subject to an illegal search and seizure conducted by Gardner and Hall (id. at 9-10). He also contends that Cothran conspired with Gardner and Hall to help get him convicted (id. at 10-13). As relief, he seeks monetary damages (id. at 14).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the district court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 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, 391 (4th Cir. 1990). In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
The complaint is filed pursuant to 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
The plaintiff's claims for damages against Gardner, Hall, and Cothran for abuse of process, false arrest, false imprisonment, and malicious prosecution are subject to dismissal pursuant to the Supreme Court's ruling in Heck v. Humphrey, which held that in order to recover damages for a conviction or imprisonment in violation of the United States Constitution, the conviction or imprisonment must first be successfully challenged. 512 U.S. 477, 490 (1994); see Edwards v. Balisock, 520 U.S. 641, 647-48 (1997) (holding that the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies that necessarily imply the invalidity of the judgment). The Supreme Court held:
[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm 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 a 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 § 1983.512 U.S. at 486-87.
Here, the plaintiff is attempting to attack the validity of his convictions; however, he has not shown that his convictions have been overturned or otherwise impugned. Indeed, just the opposite has occurred: while the plaintiff successfully challenged his convictions by way of post-conviction relief in state court, resulting in the grant of a new trial, he has since resolved his criminal case by pleading guilty to both underlying charges, as reflected in the above-cited records of the Greenville County Court of General Sessions. Here, a favorable determination on the merits of the plaintiff's Section 1983 claims would require a finding that his conviction and detention were invalid. Accordingly, since the plaintiff has pleaded guilty to the underlying state criminal charges, his civil claims are barred under Heck and subject to summary dismissal.
With respect to any state law claims raised in the complaint, the District Court should decline to exercise supplemental jurisdiction because the complaint's federal claims are recommended for summary dismissal. See 28 U.S.C. § 1367(c)(3); see also 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).
CONCLUSION AND RECOMMENDATION
Based on the foregoing,
It is recommended that the stay imposed on September 10, 2018 be lifted.
Further, the plaintiff cannot cure the defects in his complaint by mere amendment. See generally Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). Accordingly, the undersigned recommends that the district court decline to automatically give the plaintiff leave to amend and dismiss this action without prejudice and without issuance and service of process.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge October 29, 2018
Greenville, South Carolina
The plaintiff's attention is directed to the important warning 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
300 East Washington Street
Greenville, South Carolina 29601
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).
th (doc. 36).