Opinion
C/A No. 4:19-cv-01668-CMC-TER
07-19-2019
Robert L. Mitchell, #140920, a/k/a Robert Lee Mitchell, a/k/a Robert Mitchell, Plaintiff, v. Magistrate Judge Miller, Barbara Morgan, Judge Costa Pleicones, Defendants.
Report and Recommendation
This is a civil action filed by a state prisoner proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This complaint has been filed 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 the case upon a finding 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). 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. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. 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 plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
In his Amended Complaint, Plaintiff alleges that his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights have been violated. (ECF No. 10 at 4). Plaintiff alleges he was "illegally seized" in 1994. (ECF No. 10 at 13). Plaintiff alleges Defendant Miller(judge) issued a warrant without verified evidence. (ECF No. 10 at 14). Plaintiff alleges Defendant Pleicones(judge) was aware of Plaintiff's mental instability but ignored it. (ECF No. 10 at 15). "Morgan[solicitor] was permitted to make factual contention without evident[i]ary support with impunity." (ECF No. 10 at 15). Plaintiff alleges he is falsely imprisoned. (ECF No. 10 at 16). "Each Defendant could have taken action to provide due process of law to prevent deprivation of Plaintiff's due process rights, but failed to do so." (ECF No. 10 at 22). Plaintiff attaches the arrest warrant signed by Miller on December 16, 1994 and served on Plaintiff on the same date. (ECF No. 10-1 at 1). Plaintiff attaches a psychological evaluation from 1995. (ECF No. 10-1 at 2-6). Plaintiff attaches transcript portions that show Plaintiff admitting to killing his victim. (ECF No. 10-1 at 8-9). Plaintiff attached indictments. (ECF No. 10-1 at 14-18).
Defendants in this action are state court judges and a solicitor. On June 18, 2019, Plaintiff was informed regarding immunity as to the defendants contained in the original complaint and given notice and opportunity to amend his complaint. (ECF No. 7). He availed himself of such opportunity and filed an Amended Complaint; however, the deficiencies persist as to immune defendants and this action is subject to summary dismissal.
Plaintiff's claims against Defendants Pleicones and Miller are based on their official participation and resulting judicial rulings made in relation to Plaintiff's court cases and are barred by the doctrine of absolute judicial immunity. Judicial immunity is a threshold question which requires summary dismissal. Siegert v. Gilley, 500 U.S. 226, 232 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As the Fourth Circuit has stated relevant to the reasons for the doctrine of absolute immunity for judges:
The absolute immunity from suit for alleged deprivation of rights enjoyed by judges is matchless in its protection of judicial power. It shields judges even against allegations of malice or corruption. . . . The rule is tolerated, not because corrupt or malicious judges should be immune from suit, but only because it is recognized that judicial officers in whom discretion is entrusted must be able to exercise discretion vigorously and effectively, without apprehension that they will be subjected to burdensome and vexatious litigation.McCray v. Maryland, 456 F.2d 1, 3 (4th Cir.1972) (citations omitted), overruled on other grounds, Pink v. Lester, 52 F.3d 73, 77 (4th Cir.1995).
Plaintiff's claims are based in his disagreement regarding the final results of his prior cases. Such is not actionable here as judicial immunity is applicable to Defendants' actions based on their official participation and resulting judicial rulings made in relation to Plaintiff's court cases. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); King v. Nalley, 737 Fed. Appx. 163, 164 (4th Cir. 2018).
Prosecutors are protected by immunity for activities in or connected with judicial proceedings. Van de Kamp v. Goldstein, 555 U.S. 335, 338-44 (2009); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir.2000). Prosecutors, when acting within the scope of their duties, have absolute immunity from damages liability under § 1983 for alleged civil rights violations committed in the course of proceedings that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Defendant Morgan, as a solicitor, is subject to summary dismissal based on the allegations in the Amended Complaint.
Further, even with failing to name any defendants amenable to suit, Plaintiff has failed to state claims for which relief could be granted. Liberally construed, it appears Plaintiff is attempting to pursue claims for false arrest and malicious prosecution. Under § 1983, "a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid_warrant." Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)(internal citations omitted). The Fourth Circuit reiterated that "a false arrest claim must fail where it is made pursuant to a facially valid warrant." Dorn v. Town of Prosperity, 375 Fed. Appx. 284, 286 (4th Cir. 2010) (internal quotations and citations omitted). Moreover, the statute of limitations for false arrest claims are not tolled during the pendency of the criminal proceedings. Wallace v. Kato, 549 U.S. 384, 397 (2007). "We hold that the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process." Id. Plaintiff alleges his arrest was in 1994, well beyond the statute of limitations. Plaintiff's filings, which include a warrant, indicate he fails to state a claim for false arrest and would be further barred by the statute of limitations.
A claim that one is wrongfully detained because his arrest was made pursuant to a warrant that was not supported by probable cause, is a claim for malicious prosecution. See Porter field, 156 F.3d at 568; see also Wallace v. Kato, 549 U.S. 384, 389-90 (2007). To state a malicious prosecution claim, Plaintiff must show at least, that "defendant[s] have seized [plaintiff] pursuant to legal process that was not supported by probable cause and that the criminal proceedings [have] terminated in [plaintiff's] favor." Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)(internal citations and quotations omitted). The U.S. Supreme Court provided in Heck v. Humphrey, 512 U.S. 477 (1994) that until a conviction was set aside or charges finally dismissed without the possibility of revival, a § 1983 claim could not be pursued based on allegations of unlawful circumstances surrounding the criminal prosecution. See also Brooks v. City of Winston-Salem, N.C., 85 F.3d 178 (4th Cir. 1996). Plaintiff cannot show the charges have favorably terminated as he is still currently incarcerated on the charges at issue.
To the extent Plaintiff is contesting his resulting imprisonment, Plaintiff cannot obtain his "freedom" or release from prison in this civil rights action. See Heck v. Humphrey, 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"); and Johnson v. Ozmint, 567 F. Supp. 2d 806, 823 (D.S.C. 2008) (release from prison is not a remedy available under 42 U.S.C. § 1983).
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with recent Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend, has amended, and still has failed to state a claim upon which relief could be granted.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge July 19, 2019
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next 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 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).