Opinion
C/A 3:23-3925-RBH-KDW
05-23-2024
Dwight Xavier Jones, a/k/a Dwight X. Jones, a/k/a Dwight Jones, Plaintiff, v. Theodore M. Socha; Elise Partin; Chris Cowen; and Tim James, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Dwight Xavier Jones (“Plaintiff”), proceeding pro se and in forma pauperis, is a detainee incarcerated at the Lexington County Detention Center. He filed this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights by FBI Special Agent Theodore M. Socha, Cayce Police Chief Chris Cowen, Cayce Mayor Elise Partin, and Cayce City Councilman Tim James. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the Complaint in this case without issuance and service of process.
I. Factual and Procedural Background
Plaintiff filed this Complaint asserting double jeopardy and malicious prosecution claims. ECF No. 1 at 4. Plaintiff says he and Bradley West got into a dispute during a party in June 2020. ECF No. 1-1 at 2. Plaintiff claims he left the party and West followed Plaintiff home and assaulted him. Id. Plaintiff says he cut West with a pocketknife, and West had to have emergency surgery. Id. Plaintiff claims that following an investigation he was charged, but West, who provoked the assault, was not. Id. Plaintiff claims he began to receive death threats following this altercation and procured a handgun for protection. Id. Plaintiff was subsequently charged with unlawful carrying of a pistol in violation of S.C. Code § 16-23-0020. ECF No. 14. Plaintiff entered a guilty plea to this charge and on March 24, 2021, he was sentenced to time served. Id. Plaintiff alleges he recently filed a civil suit against Cayce Police Department in this court for their failure to arrest an individual who Plaintiff claims was a convicted felon in possession of a firearm. ECF No. 1 at 5. Plaintiff states after his lawsuit was dismissed that Defendants retaliated against Plaintiff and contacted the FBI. Id. at 5-6. Plaintiff claims as a result of this contact, he has been charged with the same unlawful carrying a pistol charge that he previously received time served for in state court. ECF No. 1-1 at 2.
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
Plaintiff contends his pending federal weapon charge, that he was already convicted of in state court, amounts to malicious prosecution and double jeopardy. ECF No. 1; ECF No. 1-1. Although there is not an independent cause of action for malicious prosecution under 42 U.S.C. § 1983, the Fourth Circuit Court of Appeals has ruled that a “malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort.” Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000). For a plaintiff to state a plausible § 1983 claim for an unreasonable seizure of his person in violation of the Fourth Amendment, the defendant must have “seized [plaintiff] pursuant to legal process that was not supported by probable cause and . . . the criminal proceedings [must have] terminated in [plaintiff's] favor.” Brooks v. City of Winston-Salem, 85 F.3d 178, 183-84 (4th Cir. 1996). Plaintiff has not alleged sufficient facts to challenge the probable cause underlying his criminal proceedings as he admits he received a handgun for his protection. Nor has Plaintiff alleged that his weapon charges have been terminated in his favor. Accordingly, Plaintiff's malicious prosecution claim is premature. See McCormick v. Wright, No. 2:10-00033-RBH-RSC, 2010 WL 565303, at *3 (D.S.C. Feb. 17, 2010). The undersigned recommends this claim be summarily dismissed.
As to Plaintiff's claim that his pending federal charge amounts to double jeopardy, the undersigned finds this claim is without merit. The Double Jeopardy Clause provides that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal or conviction, or multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498 (1984). The double jeopardy clause, however, does not prohibit the federal government from imposing criminal sanctions following state criminal sanctions since both the state and federal governments have the power, inherent in any sovereign, to independently define and punish an offense. United States v. Wheeler, 435 U.S. 313 (1978). In this case, Plaintiff entered a guilty plea and was sentenced for violation of S.C. Code § 16-23-0020, unlawful carrying of a pistol, and Plaintiff's pending charge is for unlawful transport of firearms in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e). United States v. Jones, No. 3:23-cr-00593-MGL-1 (Aug. 1, 2023).The allegations in Plaintiff's Complaint fail to establish a double jeopardy clause violation as Plaintiff acknowledges he has been charged with state and federal crimes. Where a defendant's actions may violate both state and federal law, the defendant has committed two different offenses at once, and therefore, there is no double jeopardy. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985) (explaining “[w]hen a defendant in a single act violates the ‘peace and dignity' of two separate sovereigns by breaking the laws of each, he has committed two distinct ‘offenses'” and is subject to punishment for both); United States v. Lanza, 260 U.S. 377, 382 (1922) (noting that when sovereigns derive their power from different sources, “an act denounced as a crime by both national and state sovereignties . . . may be punished by each”); see also, United States v. Montgomery, 262 F.3d 233, 238 (4th Cir. July 17, 2001) (federal prosecution not barred by prior state guilty plea); Perry v. U.S., No. 5:12-CV-00083-FL, 2013 WL 9636821, at *11 (E.D. N.C. Nov. 1, 2013) (finding double jeopardy argument to be without merit explaining that the Supreme Court has continually held that federal and state crimes are not the same offense, no matter how identical the conduct they proscribe). The undersigned recommends this claim be summarily dismissed.
A district court may take judicial notice of materials in the court's own files from prior proceedings. See United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992) (holding that the district court had the right to take judicial notice of a prior related proceeding); see also Fletcher v. Bryan, 175 F.2d 716 (4th Cir. 1949).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court dismiss Plaintiff's Complaint.
IT IS SO RECOMMENDED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).