Opinion
C. A. 6:20-cv-03796-TMC-JDA
11-03-2020
Daniel J. Perry, Plaintiffs, v. Darrell Scott Fisher, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Daniel J. Perry (“Plaintiff”), proceeding pro se, brings this civil action purportedly under 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is a detainee at the Greenville County Detention Center. He files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal for the reasons below.
The undersigned takes judicial notice of Plaintiff's pending criminal cases in the state court and other actions filed in this Court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“‘[T]he most frequent use of judicial notice is in noticing the content of court records.'”).
BACKGROUND
Plaintiff makes the following allegations in his Complaint. [Doc. 1.] Plaintiff sues a single Defendant in this action, Darrell Scott Fisher, a Greenville County magistrate judge, who was presiding over certain state criminal proceedings at issue in this case. [Doc. 1 at 2, 4.] Plaintiff contends Defendant violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution by subjecting him to false arrest and violations of his due process, equal protection, and confrontation clause rights. [Id. at 4.]
A Greenville County deputy initiated a traffic stop on June 28, 2019, and issued three traffic citations against Plaintiff. [Id. at 6.] Plaintiff appeared at the West Greenville Summary Court for an initial appearance on August 13, 2019, and he requested a jury trial for the traffic citations. [Id.] Then, on September 20, 2019, Plaintiff was arrested and detained at the Greenville County Detention Center. [Id.] Almost a year later, while still in detention, Plaintiff learned that his traffic citations were “[d]isposed” by a guilty verdict following a bench trial. [Id.] Plaintiff contends that, because he had requested a jury trial and no “Failure To Appear” was entered on the Greenville Public Index, he should not have been found guilty in his absence. [Id.] Plaintiff asserts that, because he was detained beginning on September 20, 2019, and the alleged bench trial was held on October 10, 2019, while he was detained, his due process rights were violated. [Id.] Plaintiff's request for a jury trial should have triggered jury selection, requiring his presence. [Id. at 7.] Because Defendant held a trial in Plaintiff's absence, Defendant violated his rights under the due process and the confrontation clause. [Id.]
For his injuries, Plaintiff alleges his conviction has caused delays in civil action No. 6:20-cv-00733-TMC-JDA. [Id. at 9.] Plaintiff further contends that the conviction was wrongfully placed against his driving record as administered by the South Carolina Department of Motor Vehicles and “destroyed” his rights as a non-resident to travel on the roads of South Carolina. [Id.] For his relief, Plaintiff seeks an injunction pursuant to 28 U.S.C. § 2254, seeking to challenge his conviction by Defendant as it violated his rights. [Id. at 8.]
STANDARD OF REVIEW
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). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his 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). However, even under this less stringent standard, Plaintiff's Complaint is 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
Plaintiff commenced this action by filing a Complaint on the standard court form pursuant to 28 U.S.C. § 1983, alleging Defendant violated his constitutional rights. [Doc. 1.] The undersigned notes that, although Plaintiff commenced this action pursuant to § 1983, he purportedly seeks injunctive relief pursuant to 28 U.S.C. § 2254 [id. at 8], which is not an available remedy in this civil rights action. As such, because it is unclear how Plaintiff intends to proceed with this action, the Court will evaluate Plaintiff's claims under both § 1983 and § 2254. Nevertheless, Plaintiff's claims are subject to summary dismissal whether this action should proceed under either § 1983 or § 2254.
Plaintiff's Claims under § 1983
To the extent this action should be construed as a civil rights action under 42 U.S.C. § 1983, it is subject to summary dismissal for the reasons below. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). 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).
Defendant is Entitled to Dismissal
Defendant is a state magistrate judge and has absolute judicial immunity from this civil action and should be dismissed from this case. It is well settled that judges have absolute immunity from damages claims arising out of their judicial actions, unless they acted in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that, even if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Whether an act is judicial or non-judicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13. Immunity presents a threshold question. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Absolute immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). Here, Plaintiff makes various allegations against Defendant concerning his conduct and rulings related to Plaintiff's state court criminal case, but these allegations all relate to judicial actions. Thus, because all of the alleged misconduct of Defendant arose out of his judicial actions, judicial immunity squarely applies and should bar this lawsuit against him. Accordingly, Defendant would be entitled to summary dismissal were this action construed to be a § 1983 action.
Plaintiff's Claims are Barred by Heck
Additionally, were this action construed to be a § 1983 action, the Complaint as a whole should be dismissed because it is legally frivolous. A finding of frivolousness 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). Thus, 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, 324-25 (1989).
The crux of this action appears to be a challenge to Plaintiff's conviction at a bench trial held before Defendant. Thus, to the extent that Plaintiff is seeking money damages or some other relief available in this civil rights action based on his allegedly unlawful conviction, his claim is not cognizable because his conviction has not been invalidated. As noted, Plaintiff was convicted after a bench trial of certain traffic citations. However, the Complaint is completely devoid of any allegations that Plaintiff's conviction has been overturned.
In Heck, the Supreme Court pronounced,
. . . in 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 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.Heck v. Humphrey, 512 U.S. 477, 481 (1994). Further, the Supreme Court stated that,
. . . 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.Id. This is known as the “favorable termination” requirement, which Plaintiff has not alleged he has satisfied. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008).
The Heck holding applies to this case. Plaintiff seems to allege that Defendant violated his due process rights by unlawfully holding a bench trial in his absence and adjudicating him guilty of certain traffic citations. [Doc. 1 at 6-7.] However, Plaintiff does not allege that his conviction has been invalidated, for example, by a reversal on direct appeal or a state or federal court's issuance of a writ of habeas corpus. A favorable determination on the merits of Plaintiff's § 1983 claim would imply that the criminal charges and conviction against him are invalid. Thus, this § 1983 claim should be dismissed because a right of action has not accrued.
The limitations period will not begin to run until the cause of action accrues. See Morris v. Cardillo, No. 0: 10-cv-0443-JFA-PJG, 2010 WL 2722997, at *2 (D.S.C. Apr. 15, 2010), Report and Recommendation adopted by 2010 WL 2722992 (D.S.C. July 9, 2010).
Plaintiff's Claims under § 2254
To the extent Plaintiff's action should be construed as seeking habeas relief under § 2254, it is subject to summary dismissal for the reasons below. Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Ordinarily, a state prisoner seeking habeas relief under 28 U.S.C. § 2254 “must exhaust his remedies in state court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999); see 28 U.S.C. § 2254(b) (explaining exhaustion requirement).
This Court is charged with screening Petitioner's lawsuit filed under § 2254 to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012).
If Plaintiff's action were construed to be one seeking habeas relief under 28 U.S.C. § 2254, the action would be subject to summary dismissal because Plaintiff would be challenging a state court conviction without having exhausted his state court remedies. Exhaustion of state court remedies is required by 28 U.S.C. § 2254(b)(1)(A), which provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State . . . .” 28 U.S.C. § 2254(b)(1); see also Straws v. Padula, No. 4: 09-cv-009-HFF-TER, 2009 WL 691190, at *2 (D.S.C. Mar. 16, 2009). “The exhaustion requirement is ‘grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.'” Washington v. Cartledge, No. 4:08-cv-4052-PMD, 2010 WL 1257356, at *1 (D.S.C. Mar. 29, 2010) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991). As the Fourth Circuit Court of Appeals has explained, “a federal habeas court may consider only those issues which have been ‘fairly presented' to the state courts.” Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) (instructing that, “to satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the petitioner.”) (citations omitted).
The undersigned has reviewed the Greenville County Public Index and concludes that Plaintiff has not filed an appeal from his conviction or a state court post-conviction relief (“PCR”) action. As such, this Court should not keep this case on its docket to the extent Plaintiff intends to exhaust his state court remedies by filing a PCR action. See Washington, 2010 WL 1257356, at *2 (explaining that dismissal is proper because “Petitioner simply cannot proceed with the instant petition until his application for post-conviction relief is ruled upon and a petition for a writ of certiorari is considered by the South Carolina Supreme Court”) (citing 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270 (1971); Galloway v. Stephenson, 510 F.Supp. 840, 846 (M.D. N.C. 1981)). For these reasons, the instant action, to the extent it is filed pursuant to § 2254, is premature and is subject to summary dismissal without prejudice.
Plaintiff can file a § 2254 petition with the Court after he has exhausted his state court remedies, though he should be mindful of the statute of limitations applicable to this action under 28 U.S.C. § 2244(d), which provides that “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1); see also Washington, 2010 WL 1257356, at *2. While the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, see 28 U.S.C. § 2254(d)(2), the one-year statute of limitations begins to run on the date the Plaintiff's conviction becomes final, not at the end of collateral review.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 and § 1915A without leave to amend and without issuance and service of process.
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6: 18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6: 18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
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
300 East Washington Street, Room 239
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).