Opinion
C.A 9:23-04065-TMC-MHC
12-05-2023
George Holmes, Plaintiff, v. Jonathan M. Hewitt, Jeffery Stephens, Judge Carmen Tevis Mullen, Courtney Ann Gibbes, Colin Hamilton, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This a civil action filed by Plaintiff George Holmes, a state prisoner that is proceeding pro se and in forma pauperis. 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 filed his First Amended Complaint on September 18, 2023. ECF No. 5.
In an Order dated October 10, 2023, Plaintiff was directed to provide certain documents to bring his case into proper form. He was also notified of pleading deficiencies in his Amended Complaint and given the opportunity to file a second amended complaint. See ECF No. 10. He has now provided the necessary documents to bring his case into proper form. Plaintiff filed a Second Amended Complaint on October 23, 2023. ECF No. 16.
I. BACKGROUND
Plaintiff is an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections. Records from Beaufort County indicate that Plaintiff was found guilty at a jury trial on the charges of burglary/burglary(violent) second degree (case number 2018A0710200399) and burglary/safecracking (case number 2018A0710200400) on May 18, 2022. Plaintiff appealed his convictions and these appeals are still pending. See Beaufort County Fourteenth Judicial Circuit Public Index, website cite [search case numbers listed above] (last visited Nov. 29, 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).
Review of the Second Amended Complaint, including attachments and supplements, indicates that Plaintiff brings claims under 42 U.S.C. § 1983. He generally asserts that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were allegedly violated. He also may be attempting to allege state law claims. Defendants appear to be Beaufort County Sheriff's Department officer Jonathan M. Hewitt (Hewitt); Judge Carmen Tevis Mullen (Judge Mullen); and Beaufort County assistant public defenders Jeffery Stephens (Stephens), Courtney Ann Gibbes (Gibbes), and Colin Hamilton (Hamilton).
Plaintiff also mentions an alleged violation of the “Sherman Act.” Section 1 of the Sherman Act “makes unlawful ‘every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States.'” Parker v. Brown, 317 U.S. 341, 350 (1943). Section 2 of the Act “makes it unlawful to ‘monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States.'” Id. Plaintiff has asserted no facts to logically connect the Sherman Act to Defendants' purported conduct. Plaintiff cannot invoke federal question jurisdiction based on unsupported citations to inapplicable federal authorities. See, e.g., Rivers v. Goodstein, No. 2:18-cv-2032-RMG-MGB, 2018 WL 4658487, at *6 (D.S.C. Sept. 7, 2018), report and recommendation adopted, 2018 WL 4656239 (D.S.C. Sept. 27, 2018) (explaining that the “mere recitation of inapplicable statutes in connection with patently frivolous claims” will not save a pro se complaint from dismissal); Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (noting that a federal court lacks subject matter jurisdiction over a complaint raising claims “so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy”) (internal citations omitted).
These are the Defendants named in Plaintiff's Complaint and First Amended Complaint. See ECF No. 1 at 1-3, ECF No. 5 at 1-3. In the caption of his Second Amended Complaint, Plaintiff merely wrote “Holmes v. Hewitt et al” and failed to list the names of all Defendants. Although he was provided (see ECF No. 10) with a blank complaint form that includes a section for a plaintiff to list all named Defendants, Plaintiff did not complete the blank complaint form and instead submitted a two-page handwritten pleading he titled “Statement of The Claim § 1983 (ECF No. 16) with additional documents on October 23, 2023; an attachment titled “State a Claim § 1983 Second Amend” (ECF No. 16-4) on October 30, 2023; a third attachment titled “Attach State A Claim § 1983” (ECF No. 16-6) on October 31, 2023, and a fourth attachment titled “Attach State A Claim § 1983 Second Amend” (ECF No. 16-8) on November 2, 2023. Review of these documents indicates that Plaintiff appears to be attempting to assert claims against the same Defendants previously named. Additionally, he provided service documents (a summons and Forms USM-285) for the previously named Defendants. Thus, in the light most favorable to Plaintiff, the undersigned construes the Second Amended Complaint as naming Hewitt, Judge Mullen, Stephens, Gibbes, and Hamilton as Defendants.
Plaintiff contends that Defendant Jonathan M. Hewitt, an officer with the Beaufort County Sheriff's Department, committed perjury by allegedly lying under oath at Plaintiff's preliminary hearing held on February 1, 2019. He claims that Hewitt's alleged statement that the safe was “crack open” was untruthful. See ECF Nos. 16 at 1-2, 16-4 at 1, 16-8 at 2. Plaintiff asserts that he “fired” all three of his appointed public defenders (Defendants Stephens, Gibbes, and Hamilton). He claims that Gibbes and Hamilton wanted him to plead guilty and that Gibbes wanted to prolong his case by trying to make Plaintiff submit to a mental health evaluation as to Plaintiff's competency to stand trial. See ECF Nos. 16 at 2, 16-4 at 1,16-8 at 2. Plaintiff alleges that Judge Mullen did not let him represent himself pro se, did not conduct a Faretta colloquy, and did not provide him with a speedy trial. See ECF No. 16-4 at 2-4. He did not include a section as to “Relief” in his Second Amended Complaint. Plaintiff did write “acquittal” (see ECF No. 16-2 at 2) and may be requesting release from prison.
The purpose of such a colloquy is to ensure that a defendant does not embark on selfrepresentation without being made aware of the dangers and disadvantages of doing so. See United States v. Stanley, 256 Fed.Appx. 583, 585 (4th Cir. 2007) (citing Faretta v. California, 422 U.S. 806, 835 (1975)).
Without a request for relief, this action is subject to summary dismissal. Were this Court to find that Plaintiff's rights have been violated, but order no remedy, it would, in effect, be rendering an advisory opinion; such action is barred by Article III of the Constitution. Preiser v. Newkirk, 422 U.S. 395, 401 (1975); see also Bowler v. Young, 55 Fed.Appx. 187, 188 (4th Cir. 2003); Norvell v. Sangre de Cristo Dev. Co., 519 F.2d 370, 375 (10th Cir. 1975) (federal courts do not render advisory opinions).
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
This action is subject to summary dismissal for the reasons discussed below.
A. Failure to State a Claim
Although Plaintiff lists the names of Defendants Stephens, Gibbes, and Hamilton in his Second Amended Complaint and generally asserts that he fired them, they tried to make him take a plea deal, and Gibbes asked for a competency evaluation, he fails to provide any specific facts to support a claim that these Defendants violated any of 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”).
B. Heck v. Humphrey
To the extent Plaintiff may be requesting relief of monetary damages, his claims are barred by 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 42 U.S.C. § 1983:
[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). As noted above, public records indicate that Plaintiff was found guilty on the burglary/burglary (violent) second degree and burglary/safecracking charges. Plaintiff's Second Amended Complaint includes no indication that these convictions or sentences have been overturned through a direct appeal, state post-conviction relief application, or habeas corpus proceeding or otherwise invalidated. Thus, any claims for monetary damages where a judgment in Plaintiff's favor would necessarily imply the invalidity of his convictions and/or sentences may be subject to summary dismissal.
C. Release from Custody Not a Viable Remedy Under § 1983
It is unclear, but Plaintiff may be asking this Court to order that he be released from prison. However, such relief is not available in this civil rights action. See Heck, 512 U.S. at 481 (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length or duration of confinement is within the core of habeas corpus).
D. Younger
To the extent Plaintiff may be requesting that this Court intervene in his criminal cases, both of which have appeals pending, this action 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). 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; see also Howell v. Wilson, No. 4:13-2812-JFA-TER, 2014 WL 1233703, at *3 (D.S.C. Mar. 25, 2014) (Plaintiff's “pending DNA application and his PCR applications are still part of his ‘pending criminal case' as that terminology is understood under Younger and its progeny.”); Smith v. Bravo, No. 99 C 5077, 2000 WL 1051855, *5 (N.D. Ill. 2000) (presuming that Younger abstention would apply to civil case that could interfere with post-conviction proceedings); Lockheart v. Chicago Police Dept., No. 95 C 343, 1999 WL 639179, *2 (N.D. Ill. Aug. 17, 1999) (applying Younger because post-conviction proceedings were pending).
E. Judge Mullen/Judicial Immunity
Judge Mullen is also subject to summary dismissal because, based upon the facts alleged, she is entitled to judicial immunity. 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). 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. Defendant Hewitt/Statute of Limitations
As noted above, Plaintiff claims that Defendant Hewitt committed “perjury and subordination of perjury.” ECF No. 16-8 at 2. Plaintiff may also be attempting to bring claims against Defendant Hewitt for an alleged violation of a criminal statute. However, “[t]he 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 also 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”). Here, Plaintiff has not pointed to any criminal statute that Hewitt allegedly violated for which Plaintiff has a private cause of action.
It may be that Plaintiff is requesting that this Court prosecute or bring criminal charges against Defendant Hewitt, However, a private citizen such as Plaintiff has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (A private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person); Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (applying Linda R.S. v. Richard D. and collecting cases); Collins v. Palczewski, 841 F.Supp. 333, 340 (D. Nev. 1993) (“Long ago the courts of these United States established that ‘criminal statutes cannot be enforced by civil actions.'”).
Additionally, it appears that Plaintiff's claims against Defendant Hewitt are barred by the applicable statute of limitations. For a § 1983 claim arising in South Carolina, the statute of limitations is three years. See Owens v. Okure, 488 U.S. 235, 240-241 (1989) (“Because § 1983 claims are best characterized as personal injury actions, ... a State's personal injury statute of limitations should be applied to all § 1983 claims.”); Owens v. Baltimore City State's Attorney Office, 767 F.3d 379, 388 (4th Cir. 2014) (“[T]o determine the timely filing of a § 1983 claim, courts borrow the statute of limitations from the most analogous state-law cause of action. For § 1983 suits, that cause of action is a personal-injury suit.”) (internal citations omitted); Brannon v. Blanton, No. 9:15-2434-CMC, 2016 WL 4232886, at *2 (D.S.C. Aug. 11, 2016) (“[T]he statute of limitations for § 1983 claims arising in South Carolina is three years, regardless of the underlying allegations of the § 1983 claim.”).
A § 1983 cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995); see also Wallace v. Kato, 549 U.S. 384 (2007) (providing that the accrual date of a § 1983 cause of action is a question of federal law). Here, Plaintiff claims that Hewitt committed perjury at Plaintiff's preliminary hearing on February 1, 2019 (see ECF No. 16 at 2), but Plaintiff did not file this action until August 16, 2023, well over three years after the alleged incident.
While the statute of limitations is an affirmative defense that is subject to waiver if not timely raised in a responsive pleading (see Fed.R.Civ.P. 8(c)), the court is authorized to anticipate clearly apparent affirmative defenses available to defendants in determining whether, under § 1915, process should be issued. Todd v. Baskerville, 712 F.2d at 74; see also Duncan v. West Virginia, 597 F.Supp. 1195, 1196 (S.D. W.Va. 1984) (“Although some of the matters discussed constitute defenses, where the complaint on its face raises obvious and complete affirmative defenses, the Court may consider these defenses in ruling under 28 U.S.C. § 1915(d) [that a] complaint [is] frivolous.”) (citation omitted).
G. Defendants Stephens, Gibbes, and Hamilton are not State Actors under § 1983
Defendants Stephens, Gibbes, and Hamilton are also subject to summary dismissal because they are not state actors under § 1983. Plaintiff has alleged no facts to indicate that these Defendants acted under color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk Cnty. v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) (“A lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.”); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney).
To state a claim under § 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).
H. State Law Claims
Plaintiff may also be attempting to assert claims under South Carolina law. However, if Plaintiff 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 all appear to be citizens of South Carolina.
Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff asserts 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 prejudice, without leave to amend,8 and without issuance and service of process.
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).