Opinion
C/A No.: 4:18-3090-RBH-KDW
12-28-2018
Ricardo Garza Ramirez, Plaintiff, v. Investigator S. Banister, Investigator Number Two, Police Officer Name Unknown One, and Police Officer Name Unknown Two, Defendants.
REPORT AND RECOMMENDATION
Plaintiff is a pretrial detainee at Florence County Detention Center in Florence, South Carolina. Plaintiff, proceeding pro se, has brought this 42 U.S.C. § 1983 action against four members of the Florence County Police Department. Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge 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).
On December 3, 2018, the undersigned issued an order granting Plaintiff's motion to proceed in forma pauperis and directing him to file necessary service documents. ECF No. 9. On December 12, 2018, Plaintiff provided service documents for Defendant Banister, but not for the other three, unnamed, Defendants.
Accordingly, should the district court find it appropriate not to dismiss this case in its entirety, the undersigned would still recommend dismissal of Investigator Number Two, Police Officer Name Unknown One and Police Officer Name Unknown Two pursuant to Rule 41 of the Federal Rules of Civil Procedure.
I. Background
Plaintiff alleges that on March 9, 2018, Defendant Banister initiated a traffic stop and accused Plaintiff of participating in a burglary. Banister initially arrested Plaintiff for driving without a license and then changed the charge to burglary. According to Plaintiff, Banister "accused [him] of burglary without evidence or probable cause and without investigating me and saying racial things when he put me in a police car." ECF No. 1 at 17. He alleges that he "never was investigated." Id. Plaintiff is currently in the Florence County Detention Center awaiting trial on a charge of first degree burglary.
The remainder of Plaintiff's Complaint concerns Banister's and three other unnamed officers' treatment of Plaintiff and his wife during the arrest. Plaintiff alleges the officers used loud voices, made derogatory comments about Hispanics, laughed at them, and generally acted unprofessionally and that he was, therefore, "under stress," "suffered duress," and was "mentally affected." ECF No. 1 at 18. Even liberally construed, these allegations do not amount to a cognizable § 1983 claim. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985) (there is no federal constitutional right to be free from emotional distress, psychological stress, or mental anguish, and, hence, there is no liability under § 1983 regarding such claims); see Northington v. Jackson, 973F.2d 1518, 1524 (10th Cir. 1992) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); Emmons v. McLaughlin, 874 F.2d 351, 354 (6th Cir. 1989) (verbal threats causing fear for plaintiff's life not an infringement of a constitutional right); Batista v. Rodriguez, 702 F.2d 393, 398 (2d Cir. 1983); Sluys v. Gribetz, 842 F. Supp. 764, 765 n.1 (S.D.N.Y. 1994); see also Cameron v. Bonney, No. 12-7836, 2013 WL 1800423 (4th Cir. April 30, 2013).
II. 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, 1915A, and the Prison Litigation Reform Act of 1996, 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
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), and a federal district 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); Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this 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, 391 (4th Cir. 1990). Even under this less stringent standard, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B). III. Discussion
Liberally construed, Plaintiff's allegations constitute a claim of false arrest. Although Wallace v. Kato, 549 U.S. 384 (2007) (finding Heck v. Humphrey, 512 U.S. 477 (1994), does not bar false arrest claims by pretrial detainees), would apply to this case, Plaintiff's claims fail because he has been indicted in Florence County for first degree burglary. See Florence Cnty. Clerk of Court Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/CaseDetails.aspx?County=21&CourtAgency=21001&Casenum=2018A2120200607&CaseType=C&HKey=110100107865352891141106811110066979910311986831141118611653737069765443104836711411973731001041066712069, last visited Dec. 28, 2018 (showing Indictment Number 2018GS2101319 and a charge for Burglary First Degree). A grand jury indictment is affirmative evidence of probable cause sufficient to defeat claims for malicious prosecution and false arrest under § 1983. See Gatter v. Zappile, 67 F. Supp. 2d 515, 519 (E.D. Pa. 1999) (collecting cases holding that a grand jury indictment is affirmative evidence of probable cause, aff'd, 225 F.3d 648 (3d Cir. 2000); Odom v. Roberts, C/A No. 6:12-2452-TMC-JDA, 2012 WL 4061679, at *2 (D.S.C. August 27, 2012), report and recommendation adopted, No. CA 6:12-2452-TMC, 2012 WL 4059916 (D.S.C. Sept. 14, 2012).
A federal court may take judicial notice of matters of public record. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record").
In addition, absent extraordinary circumstances, federal courts are not authorized to interfere with a state's pending criminal proceedings. See Younger v. Harris, 401 U.S. 37, 44 (1971); Nivens v. Gilchrist, 319 F.3d 151, 158-62 (4th Cir. 2003); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989). Further, federal district courts should abstain from considering constitutional challenges to state judicial proceedings, no matter how meritorious, if the federal claims have been or could be presented in an ongoing state judicial proceeding. Cinema Blue of Charlotte, Inc., 887 F.2d at 52. Here, Plaintiff can properly present his constitutional claims in his state criminal proceeding. IV. Conclusion and Recommendation
Accordingly, it is recommended that the district court dismiss this case without prejudice and without service of process.
IT IS SO RECOMMENDED. December 28, 2018
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
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).