Opinion
C. A. 9:23-04238-TMC-MHC
02-27-2024
George Holmes, Plaintiff, v. Jonathan M. Hewitt, Jeffrey Stephens, Courtney Ann Gibbes, Carmen T. Mullen, Colin J. Hamilton, Defendants.
REPORT AND RECOMMENDATION
Molly H. Oerry United States Magistrate Judge
This a civil action filed by Plaintiff George Holmes, a state prisoner proceeding pro se and in forma pauperis. He filed an Amended Complaint on November 2, 2023. ECF No. 6.
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.
In an Order dated November 27, 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. 9. Plaintiff has now provided the necessary documents to bring his case into proper form. He filed his Second Amended Complaint on December 27, 2023. ECF No. 12.
I. BACKGROUND
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, https://publicindex.sccourts.org/Beaufort/PublicIndex/PISearch.aspx [search case number listed above] (last visited Feb. 26, 2024).
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 Plaintiff's Second Amended Complaint, including attachments, indicates that Plaintiff brings claims under 42 U.S.C. § 1983 against Defendants 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). See ECF No. 12 at 2-4. He generally asserts that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated. He also appears to be attempting to allege claims under South Carolina law. See Id. at 4-7; ECF No. 12-2 at 12-16.
Plaintiff contends that Defendant Hewitt committed perjury by allegedly lying under oath at Plaintiff's preliminary hearing held on February 1, 2019. See ECF No. 12 at 4-6; ECF No. 12-2 at 11-12. He generally asserts ineffective assistance of counsel and asserts that he “fired” all three of his appointed public defenders (Defendants Stephens, Gibbes, and Hamilton). Additionally, Plaintiff alleges that Stephens witnessed Hewitt lying under oath at the preliminary hearing and that Gibbes and Hamilton wanted him to plead guilty to the criminal charges even after Plaintiff told them about the supposed perjury by Stephens. Plaintiff contends that Judge Mullen erred by not conducting a Faretta colloquy. ECF No. 12 at 5. He may also be attempting to allege that Judge Mullen did not allow him to represent himself and failed to provide him with a fair trial. Id. at 6.
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)).
This action appears to be duplicative of another case filed by Plaintiff, Holmes v. Hewitt, No. 9:23-0465 (D.S.C.), that was dismissed without prejudice on January 22, 2024.
Plaintiff appears to allege that he has suffered from suicidal ideation, stress, and other health problems as a result of the alleged actions. ECF No. 12 at 7. Plaintiff requests monetary damages and also appears to request release from prison. Id.
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. Heck v. Humphrey
Plaintiff's request for monetary damages is 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 are subject to summary dismissal.
B. Release from Custody Not a Viable Remedy Under § 1983
Plaintiff is requesting release from prison. See ECF No. 12 at 7. 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).
C. Younger v. Harris
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).
D. 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.
E. Defendant Hewitt/No Private Cause of Action under Criminal Statutes/Statute of Limitations
As noted above, Plaintiff claims that Defendant Hewitt lied under oath and committed perjury. ECF No. 12 at; 12-2 at 11-12. 16-8 at 2. Plaintiff may also be attempting to bring claims against Defendant Hewitt for an alleged violation of South Carolina criminal statutes. 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, 44748 (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”).
South Carolina courts also recognize that there is no private right of action under a criminal statute unless the legislature intended for such a right to be created. Whitworth v. Fast Fare Markets of South Carolina, Inc., 338 S.E.2d 155 (S.C. 1985); see also Dorman v. Aiken Communications, Inc., 398 S.E.2d 687, 689 (S.C.I 990). Additionally, a violation of state law does not provide the basis for a claim under § 1983. See Clark v. Link, 855 F.2d 156, 161-62 (4th Cir. 1988). Here, Plaintiff has not pointed to any criminal statute that Hewitt allegedly violated for which Plaintiff has a private cause of action.
Additionally, 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. 12 at 4-5, ECF No. 12-2 at 11-12). His claims are time barred because he did not file this action until August 25, 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).
F. Defendants Stephens, Gibbes, and Hamilton are not State Actors under § 1983
Defendants Stephens, Gibbes, and Hamilton are also entitled 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.”); Hallv. 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).
G. State Law Claims
Plaintiff also appears to be attempting to assert claims under South Carolina law. However, because 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. See ECF No. 12 at 2-3.
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 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 “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
The Clerk of Court is directed to send a copy of this Report and Recommendation to Plaintiff at his address of record and also to Plaintiff at Turbeville Correctional Institution (TCI), 1578 Clarence Coker Hwy, Turbeville, SC 29162. It appears, from the envelope in which Plaintiff mailed his Second Amended Complaint and records from SCDC, that Plaintiff is currently incarcerated at TCI. See SCDC Incarcerated Inmate Search, http://public.doc.state.sc.us/scdc-public/ [Search Inmate “George Holmes”] (last visited Feb. 26, 2024); see also ECF No. 12-3. Although Plaintiff was previously warned that he must always keep the Clerk of Court advised in writing if he address changes and that his case may be dismissed for failing to do so, he failed to submit a written change of address notice.
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).