Opinion
Case No. 2:17-cv-681-BHH-MGB
03-15-2017
Nathanael L. Reynolds, Plaintiff, v. State of South Carolina, et al., Defendants.
REPORT AND RECOMMENDATION
This is a civil action pursuant to 42 U.S.C. § 1983. Plaintiff is a pretrial detainee currently incarcerated at the Charleston County Detention Center located in Charleston, South Carolina. Plaintiff is proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2) (D.S.C.), the United States Magistrate Judge is authorized to review the case and to submit findings and recommendations to the United States District Judge. Upon careful review, the Magistrate Judge recommends that the Complaint be summarily dismissed , with prejudice , and without issuance and service of process, for the following reasons:
Plaintiff has spelled his name "Nathanael" Leonard Reynolds. Some of the public records list his first name as "Nathaniel." See Williamsburg County Third Judicial Circuit Public Index, Case No. 2014-A-452-0300159.
I. Relevant Law
A. Standard of Review
Under established local procedure in this judicial district, the Magistrate Judge has carefully reviewed this pro se prisoner complaint pursuant to 28 U.S.C. § 1915 and in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action is "frivolous or malicious," "fails to state a claim on which relief may be granted," 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. 25, 31 (1992). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke, 490 U.S. 319. The PLRA also provides for the screening of complaints "in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a).
With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke, 490 U.S. at 326. 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)). "Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).
B. Liberal Construction
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore., 901 F.2d 387, 391 (4th Cir.1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986).
C. The PLRA's 3-strike provision
Plaintiff is a prolific filer of meritless cases. A search on CM-ECF reveals that in this federal judicial district, Plaintiff has brought the following cases, all of which were dismissed:
1:14-cv-04430-MGL Reynolds v. Pressley et al., filed 11/17/14, closed 05/26/15
1:16-cv-01741-MGL Reynolds v. Johnson et al., filed 05/31/16, closed 06/22/16
4:15-cv-00695-MGL Reynolds v. Bartell et al., filed 02/24/15, closed 01/14/16
4:15-cv-00865-MGL Reynolds v. Brown et al., filed 02/26/15, closed 06/30/15
4:15-cv-02667-MGL Reynolds v. Brown et al., filed 07/06/15, closed 08/31/15
4:15-cv-03256-MGL Reynolds v. Driggers et al., filed 08/17/15, closed 09/30/15
1:15-cv-00388-MGL, Reynolds v. Johnson et al., (filed 01/28/15, closed 01/26/16)
4:15-cv-02350-MGL, Reynolds v. Johnson et al., (filed 06/10/15, closed 08/31/15)
4:15-cv-02722-MGL, Reynolds v. Shuler et al., (filed 07/09/15, closed 09/30/15). In addition, Plaintiff has several other actions currently pending in this Court. See Case Nos. 2:16-cv-512-BHH-SVH/MGB, Reynolds v. Cannon et al.; 4:17-cv-298-BHH-MGB, Reynolds v. South Carolina. The latter case is a duplicate of the present action. The Court may properly take judicial notice of its own records. Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989).
The PLRA, at 28 U.S.C. § 1915(g) provides that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.See McLean, 566 F.3d at 404. "[I]f a prisoner has already had three cases dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner generally may not proceed IFP but rather must pay up-front all filing fees for his subsequent suits." Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013), as amended (Oct. 22, 2013). This means that, after receiving three strikes, plaintiff will have to pay the full filing fee for almost any future non-habeas civil action he might wish to file. Id. at 610. Plaintiff is warned that if he continues to file pleadings that are frivolous, malicious, or fail to state a claim for which relief may be granted, he risks the accumulation of three strikes against him and the resulting denial of future requests for IFP status, absent exceptional circumstances.
II. Plaintiff's Allegations
On March 8, 2017, Plaintiff filed a federal Complaint, alleging that the State of South Carolina and County of Charleston "failed to afford the Plaintiff a fair trial proceeding under 6th Amendment rights depriving him the right to a prelim (sic)." (DE# 1 at 5, ¶ IV "Statement of Claim"). Plaintiff complains that he "filed proper documentation" but never received a preliminary hearing. (Id.). He contends that "according to South Carolina Constitution 10 days after the date of filing for the preliminary hearing the Plaintiff was to be in court." (Id.). He contends that "Charleston County Solicitor Scarlet A. Wilson and subordinates failed to have [him] in court for a preliminary hearing." (Id.). He indicates that he filed "a grievance in the General Sessions Court of Charleston County 9th Circuit." (Id. at 8).
For relief, Plaintiff demands that this Court should "remove his state criminal prosecution" to federal court pursuant to 28 U.S.C. § 1455. (Id. at 6, ¶ VI "Relief").
III. Discussion
A. Failure to State a Claim: Alleged Denial of Preliminary Hearing
The Complaint fails to state a plausible claim for relief for multiple reasons. Plaintiff's allegation that his federal constitutional rights were violated because he was allegedly denied a preliminary hearing in state court is factually and legally baseless. As pointed out in previous cases, Plaintiff's argument arises from his own misunderstanding of the law.
A preliminary hearing is an informal procedure used to determine whether there is probable cause to believe the defendant committed a felony. The United States Supreme Court has explained that at a preliminary hearing, the Constitution does not require that a defendant be provided with "the full panoply of adversary safeguards" afforded at trial, such as counsel and confrontation. Gerstein v. Pugh, 420 U.S. 103, 119-121 (1975); see also United States v. Kabat, 586 F.2d 325, 328 (4th Cir. 1978). In South Carolina, a preliminary hearing is not generally held if the defendant is indicted by the grand jury or waives indictment before a preliminary hearing is held. Rule 2(b), SCRCrim.P. "The indictment itself constitutes a finding of probable cause and thus avoids the need for a preliminary hearing." State v. McClure, 277 S.C. 432, 289 S.E.2d 158, 160 (1982); Law v. S.C. Dept. of Corrections, 368 S.C. 424, 629 S.E.2d 642, 649 (2006).
The Fourth Circuit Court of Appeals has observed that "[i]t has been a long-standing rule that the return of an indictment by the grand jury eliminates the requirement of holding a preliminary hearing." United States v. Soriano-Jar quin, 492 F.3d 495, 502 (4th Cir. 2007), cert. denied, 552 U.S. 1189 (2008). In other words, the probable cause requirement may be satisfied either by a preliminary hearing or by indictment by a grand jury. Id. at 504 ("[T]he defendant's indictment mooted any questions surrounding the preliminary hearing.").
Public records indicate that Plaintiff was indicted for criminal charges of burglary first degree. See Williamsburg County, Court of Common Pleas, Indictment No. 2015-GS-45-0041. Although Plaintiff complains that he did not receive a preliminary hearing, the record reflects that he did in fact receive a preliminary hearing on February 28, 2014 with respect to the related criminal charge of "0124-Tools/Possession, making implements capable of being used in crime." Such charge was dismissed at the preliminary hearing.
See http://publicindex.sccourts.org/Williamsburg/PublicIndex/CaseDetails. Site 2/28/2017for records of "Nathanael" L. Reynolds. . Public records indicate that the Grand Jury returned a true bill of indictment against Plaintiff on March 26, 2015, for the charge of burglary first degree. See Case No. 2014-A-452-0300159.
Given that Plaintiff was indicted, his allegation that he was deprived of a preliminary hearing fails to state a claim under §1983 for violation of a constitutional right. See, e.g., Mikell v. Wilson, Case No. 2:15-3409-PMD-MGB, 2015 WL 6408189, *5 (D.S.C. Oct. 21, 2015) (same, holding that complaint failed to state a claim under §1983); Cole v.White, Case No. 2:16-cv-3548-RMG-MGB, 2017 WL 746385, *3 (D.S.C. Feb. 2, 2017), adopted by 2017 WL 748979 (D.S.C., Feb. 24, 2017) (same, summarily dismissing case).
B. Relief Sought is Unavailable: No Removal of Pending State Prosecution
Moreover, Plaintiff seeks relief that is not available here. Plaintiff improperly seeks to remove his pending state criminal prosecution for burglary to this federal court. Although Plaintiff cites 28 U.S.C. § 1455 as authority in support, this Court has previously advised Plaintiff that such statute does not apply to Plaintiff's case. Such statute provides no authority to Plaintiff for his attempted removal of his pending state criminal prosecution for burglary. Such statute provides only the procedural requirements for the narrow group of cases that are actually removable. Under the facts alleged, Plaintiff has not shown any basis for removal.
Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "There are only narrow and limited grounds upon which a state prosecution can be removed to federal court." Hallal v. Mardel, 2016 WL 6494411, *2 (E.D.Cal. Nov. 2, 2016); Hawaii Superior Ct. v. Baksheeva-Pasha, 2017 WL 659394, *2 (D.HI. Feb. 17, 2017) (finding that case did not fall "within the narrow and limited type of criminal cases that can be removed to federal court"). Specifically, under 28 U.S.C. §§ 1442(a) and 1442a, any officer of the United States or its courts, any officer of either House of Congress, or any member of the United States military that is subject to criminal prosecution may remove such an action that arises from acts done under color of such office or status. See 28 U.S.C. §§ 1442(a), 1442a. The Complaint does not allege, and nothing in the record suggests, that Plaintiff is a member of Congress or that he is any other type of federal or military official, much less that he is being prosecuted for actions taken under color of such federal office or status. Plaintiff has not shown that removal of such state prosecution would be proper.
A defendant subject to state prosecution may remove an action to federal court if he seeks to assert a defense based on federal laws protecting equal civil rights but is unable to because of state law. 28 U.S.C. § 1443. Plaintiff fails to identify any relevant state law that purports to command the state courts to ignore his federal rights. See Patel v. Del Taco, Inc., 446 F.3d 996, 999-1000 (9th Cir. 2006). Plaintiff does not allege any facts that would support a claim under 28 U.S.C. § 1443.
In the very limited circumstances where removal is properly sought, the removing party must comply with the procedure set forth in 28 U.S.C. § 1455, which requires "a notice of removal signed pursuant to Rule 11 of the Federal Rules and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Plaintiff has ignored any basis for removal and has skipped straight to the procedural requirements. Plaintiff does not meet the statutory criteria for removal, and moreover, has also failed to comply with the procedural requirements of 28 U.S.C. § 1455, i.e. he has not included copies of all process, pleadings, and orders served upon him in the state criminal action. In sum, Plaintiff has not alleged any proper grounds for removal, nor has he complied with the statutory procedural requirements.
Moreover, although Plaintiff is attempting to interfere with his state criminal prosecution for burglary by "removing" it to federal court, the United States Supreme Court has repeatedly recognized the "fundamental policy against federal interference with state criminal prosecutions." Younger v. Harris, 401 U.S. 37, 44 (1971); Middlesex County Ethics Comm. v. Garden State Bar Association, 457 U.S. 423, 431 (1982) (reiterating that federal courts should abstain from interfering with such ongoing state proceedings); Moore v. City of Asheville, N.C., 396 F.3d 385 (4th Cir. 2005) (same). "Removal" of a state burglary prosecution is not available as a remedy in this civil action. This deficiency in Plaintiff's Complaint cannot be remedied through more specific pleading. Adams v. Rice, 40 F.3d 72, 76 n.1 (4th Cir. 1994) (holding that dismissal with prejudice was therefore appropriate), cert. denied, 514 U.S. 1022 (1995).
C. Duplicate Allegations/Cases
It should also be pointed out that the docket of this Court reflects that Plaintiff has previously and unsuccessfully raised the exact same issues, which have been summarily dismissed. See, e.g., Reynolds v. Brown, Case No. 4:15-865-MGL-SVH, 2015 WL 4077168, *2 n.1 (D.S.C. Mar. 5, 2015) (holding that where a plaintiff has been indicted, his "claim that he was denied his right to a preliminary hearing does not state a constitutional claim"), adopted by 2015 WL 4078552 (D.S.C. June 30, 2015). There, the Court specifically found that "Plaintiff's claim that he was denied his right to a preliminary hearing does not state a constitutional claim." Id. The present case fails to state a claim for the same reason.
In fact, the present case is an exact duplicate of another case filed by Plaintiff. See Case No. 4:17-cv-298-BHH-MGB, Reynolds v. South Carolina. There, as here, Plaintiff attempted to remove his state prosecution for burglary first degree to federal court. In the latter case (Case No. 4:17-cv-298-BHH-MGB), in the previous case (Case No. 4:15-865-MGL-SVH), and in the present case, Plaintiff has repetitively complained that he has been deprived of a preliminary hearing in state court and that this purportedly violated his right to due process. As previously explained to Plaintiff several times, he was indicted and therefore was not entitled to a preliminary hearing in state court. Plaintiff persists in raising meritless claims that have previously been dismissed.
The Fourth Circuit Court of Appeals has instructed that "[b]ecause district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e)." Cottle v. Bell, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (citing Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992) ("[D]istrict courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party.")); Wilkins v. Harley, Case No. 6:11-cv-3463-MBS-KFM, 2012 WL 256566, *2 (D.S.C. Jan. 12, 2012) ("this duplicate § 1983 Complaint is frivolous and subject to summary dismissal"), adopted by 2012 WL 260159 (D.S.C. Jan. 27, 2012).
"[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous or malicious." Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974 (D.S.C. July 28, 2015) (holding that 'the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency"), affirmed by 631 F.App'x 197 (4th Cir. Feb. 4, 2016); and see, e.g., Sherron v. Perry, 2016 WL 407303 (W.D.N.C. Feb. 2, 2016) (dismissing duplicate case); Cox v. Cartledge, 2013 WL 1401684 (D.S.C. March 13, 2013), adopted by 2013 WL 1401674 (D.S.C., Apr. 8, 2013) (same). As a duplicate meritless lawsuit, the present lawsuit fails to state a claim for relief and is also frivolous (i.e. without factual or legal basis). See Denton, 504 U.S. at 31. This case is subject to summary dismissal.
Because this case fails to state a claim and is frivolous (which are specific grounds under 28 U.S.C. §1915(e)(2)(B)), and because Plaintiff persists in repetitively filing the same meritless claims, the dismissal of this case should be with prejudice and count as a strike for purposes of 28 U.S.C. § 1915(g). See Case No. 2:16-cv-401-RMG-MGB, Corder v. South Carolina, et al. (pretrial detainee at the Charleston County Detention Center sued, contending that he has been denied his alleged right to a preliminary hearing in pending state prosecution, case summarily dismissed with prejudice and counted as a "strike").
Accordingly, the Magistrate Judge RECOMMENDS that the Complaint (DE# 1) be summarily dismissed with prejudice , and without issuance and service of process. This dismissal should count as a "strike" for purposes of 28 U.S.C. § 1915(g).
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE March 15, 2017
Charleston, South Carolina Plaintiff's attention is directed to the Important Notice on 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).