Opinion
C/A 2:23-03369-BHH-MHC
02-23-2024
Raekwon Keontre Ricardo, Plaintiff, v. Scarlett A. Wilson, John R. Mullen, Adasha L. Clarke, J. Eric Crowe, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This is civil action filed by Plaintiff Raekwon Keontre Ricardo, a pro se litigant proceeding in forma pauperis. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order dated September 11, 2023, Plaintiff was given a specific time frame in which to bring this case into proper form by providing certain documents. ECF No. 4. Plaintiff has partially complied with this Order and the case is now in substantially proper form.
In the Order, Plaintiff was also notified of material defects in his Complaint and given the opportunity to cure the defects by filing an amended complaint. ECF No. 4. On October 6, 2023, Plaintiff filed a “Petition for Declaratory Relief” which has been filed as the Amended Complaint in this action. ECF No. 7.
In his original Complaint, Plaintiff attempted to bring claims under the Fair Debt Collection Act (FDCA) and the Fair Debt Collection Practices Act (FDCPA). He complained that Defendants Scarlett A. Wilson, John R. Mullen, and Adasha L. Clarke improperly refused to administer his application for expungement of his criminal conviction without him paying the required filing fees. Plaintiff appeared to assert that the filing fee was a “debt.” In the Order (ECF No. 4), Plaintiff was informed of material deficiencies in the Complaint, including that Plaintiff failed to state a cognizable federal claim against Defendants under the FCRA and FDCPA, the Court could not compel Defendants to expunge his records, Defendants Wilson and Mullen were entitled to prosecutorial immunity, and this Court should not exercise supplemental jurisdiction over any of Plaintiff's state law claims because Plaintiff failed to state a federal claim and there was no diversity jurisdiction.
Plaintiff initially filed an unsigned Amended Complaint. ECF No. 7 at 7. He filed a signed copy on December 7, 2023. ECF No. 7-3 at 7.
I. BACKGROUND
In his Amended Complaint, Plaintiff brings claims against Scarlett A. Wilson (Wilson), the Solicitor for South Carolina's Ninth Circuit; John R. Mullen (Mullen), a Ninth Circuit Assistant Solicitor; Adasha L. Clarke (Clarke), the Expungement Coordinator for the Ninth Circuit; and J. Eric Crowe (Crowe), the Regulatory Program Coordinator for the South Carolina Law Enforcement Division (SLED). Plaintiff asserts that he applied for an Order of Expungement at the Ninth Circuit Solicitor's Office (Solicitor's Office) on May 18, 2023. He claims that three days later he received a denial letter from the Expungement Coordinator and Solicitor's Office. Plaintiff contends that Defendants, on behalf of the Solicitor's Office, refused to administer his application for expungement prior to him paying the fees generally associated with the processing of an Order of Expungement. ECF No. 7 at 3-4.
On June 11, 223, Plaintiff allegedly sent a Notice of Dispute to Defendants in which he claimed to be exempt from the processing fee. Plaintiff claims he met with Defendant Mullen on July 10, 2023, and Mullen allegedly said that the Notice of Dispute “went all the way up the ladder” and reaffirmed Defendants' position (which appears to be that Plaintiff owed the fee before his application for expungement could be processed). ECF No. 7 at 4.
On June 23, 2023, Plaintiff supposedly applied and completed a Concealed Weapons Permit Training (CWP course) in an effort to obtain a South Carolina Concealed Weapons Permit (CWP Permit). He allegedly went to North Charleston City Hall to be fingerprinted for his CWP application on June 26, 2023. ECF No. 7 at 4.
Plaintiff claims that SLED received and began processing his CWP application on July 6, 2023. On October 2, 2023, Plaintiff allegedly received a denial of his CWP Application. He submitted a letter from Defendant Crowe that provides, in pertinent part:
Pursuant to Section 23-31-215(B), of the South Carolina Code of Laws, [SLED] is required to conduct a local, State, and Federal background check on each person who applies for a [CWP]. SLED can issue a permit if the applicant has a favorable background check. However, Federal law [Title 18 United States Code Section 922] prohibits your purchase or possession of a handgun if you have been convicted of a felony for which a maximum penalty is more than one year, or a misdemeanor for which the maximum penalty is more than two years imprisonment. SLED will can [sic] deny applicants [sic] for permits to carry concealed weapons when such possession would place the applicant in violation of state or federal law, or those who have been arrested and/or convicted of crimes that prohibit them for such, or those who do not receive a favorable recommendation from their County Sheriff.ECF No. 7-1. The letter also informed Plaintiff that he could appeal the denial to Crowe in writing and that the appeal must contain the reasons Plaintiff believed he was incorrectly denied a permit, a copy of the incident report, and certified court documents related to the disposition of the charges. Id. SLED also provided a list of information related to the letter, including that SLED records indicated that Plaintiff (1) was arrested on the charge of trafficking cocaine/10G or more but less than 28G -first offense (case number 2017004530) on March 21, 2017; (2) was arrested on the charge of furnishing contraband county/municipal prisons (warrant 2017A101020168) on March 21, 2017; (3) was charged by the North Charleston Police Department with manufacturing, possessing other substance schedule I, II, III with intent to distribute - first offense (case number 2021010621, warrant 2021A1010202067) on April 18, 2021; and (4) was charged and convicted by the Charleston PPP for manufacturing, possessing other substance Schedule 1, II, III with intent to distribute - first offense (case number 322695) on March 28, 2022. ECF No. 7-1 at 2.
Plaintiff argues that, under 18 U.S.C. § 921, he should not be considered to have been convicted of an offense if his conviction has been expunged. He contends that the first offense listed in the SLED denial letter was expunged upon his successful completion of drug court and the other charge was dismissed upon his successful completion of his probationary period but has not yet been expunged, his arrests are not current convictions under federal or South Carolina law, he is exempt from fees associated with his application for expungement, and this Court should grant him declaratory relief. ECF No. 7 at 5-6. He requests that this Court:
enter an order to the effect of making clear whether or not the clear and concise language under Title 18 of the United States Code (“Specifically 18 U.S.C. § 921(33)(B)(ii) et seq”) applies to the extent as to include Raekwon Keontre Ricardo (hereafter Petitioner”) for the purposes of determining whether or not it would be an unlaw act for Petitioner to apply for and receive a South Carolina Concealed Weapons[.]ECF No. 7 at 7-8 (errors in original).
II. STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a 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 frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Lack of Jurisdiction
This action should be summarily dismissed for lack of jurisdiction. Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). The Amended Complaint filed in this case is subject to summary dismissal without service of process because it fails to state a claim which this Court may consider under its federal question jurisdiction, see 28 U.S.C. § 1331, or its diversity jurisdiction, see 28 U.S.C. § 1332.
Plaintiff has not asserted that there is diversity jurisdiction and he has alleged facts to indicate that there is federal court jurisdiction based on diversity jurisdiction. A district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...” 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and Defendants all appear to be citizens of South Carolina. See ECF No. 7 at 2-3.
Plaintiff, in his section of the Amended Complaint titled “Jurisdiction and Venue,” asserts that this Court “has jurisdiction to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202.” He asserts that venue in the District of South Carolina “is proper under 18 U.S.C. § 3231 and raises a federal question under 28 U.S.C[.] § 1331.” ECF No. 7 at 2.
Plaintiff may be attempting to argue that there is jurisdiction under 18 U.S.C. § 3231 which provides that “[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” 18 U.S.C. § 3231. However, this statute fails to provide jurisdiction in this civil (not criminal) lawsuit brought by Plaintiff. Although § 3231 gives exclusive jurisdiction to federal courts over all offenses against the laws of the United States, it “does not amount to authorization of a federal private right of action any time a civil plaintiff invokes a federal criminal statute.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1303 (11th Cir. 2008); see also Jones v. Lockett, No. 08-16, 2009 WL 2232812, at *8 (W.D. Pa. July 23, 2009) (holding that various criminal statutes invoked by the plaintiff did not confer a private cause of action); Weeks v. Bowman, No. CV 16-9050, 2017 WL 557332, at *2 (D.N.J. Feb. 10, 2017) (finding no subject matter jurisdiction based on § 3231 where the plaintiff cited to criminal statutes that did not create a private cause of action).
Although Plaintiff cites to 18 U.S.C. §§ 921 and 922, he has not alleged any facts to establish that these statutes create a private cause of action, and “[t]he Supreme Court historically has been loath to infer a private right of action from “a bare criminal statute,” because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group.” Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 80 (1975)); see Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (observing that enforcement of statutory violation under 42 U.S.C. § 1983 requires showing that “intended to create a federal right”). Where, as here, criminal statutes bear “no indication that civil enforcement of any kind was available to anyone,” a civil complaint alleging violations of such statutes cannot be sustained as a matter of law. Cort v. Ash, 422 U.S. at 80; see also Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 528 (1st Cir. 2024) (noting that nothing in § 922 seems to create a private right of action); Starr v. Price, 385 F.Supp.2d 502, 512 (M.D, Pa. 2005) (§ 922 does not create a private cause of action).
Nor does the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, independently create federal jurisdiction. See CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 55 (4th Cir. 2011) (“[The Declaratory Judgment Act], however, is remedial only and neither extends federal courts' jurisdiction nor creates any substantive rights.”) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950)). “[I]t is elementary that a federal court may properly exercise jurisdiction in a declaratory judgment proceeding when three essentials are met: (1) the complaint alleges an ‘actual controversy' between the parties ‘of sufficient immediacy and reality to warrant issuance of a declaratory judgment;' (2) the court possesses an independent basis for jurisdiction over the parties (e.g., federal question or diversity jurisdiction); and (3) the court does not abuse its discretion in its exercise of jurisdiction.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 592 (4th Cir. 2004) (citations omitted). Here, Plaintiff has not alleged any facts to indicate that there is an independent basis for jurisdiction over the parties because he has not alleged a basis for federal question or diversity jurisdiction and thus there is no federal jurisdiction under 28 U.S.C. §§ 2201 and 2202.
Section 2201 provides, in pertinent part:
(a) In a case of actual controversy within its jurisdiction, except ..., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.28 U.S.C. § 2201(a). Section 2202 provides:
Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.28 U.S.C. § 2202.
B. Failure to State a Claim
Even if Plaintiff can establish jurisdiction, he fails to state a federal claim against any of the named Defendants. Although Plaintiff lists Defendants in the caption and the “Parties” section of his Amended Complaint, he fails to allege any facts as to any violation of any of his federal constitutional or statutory rights by the named Defendants.
Additionally, to the extent that Plaintiff may be attempting to bring a claim against Defendant Wilson under 42 U.S.C. § 1983 (§ 1983) based on a theory of supervisory liability, such a claim is subject to summary dismissal. To state a § 1983 claim for supervisory liability, a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Here, Plaintiff has not alleged any facts to establish supervisory liability as to Defendant Wilson.
C. Prosecutorial Immunity
Additionally, Defendants Wilson and Mullen are entitled to prosecutorial immunity. Prosecutors have absolute immunity from damages for activities performed as “an officer of the court” where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009). For example, when a prosecutor “prepares to initiate a judicial proceeding,” “appears in court to present evidence in support of a search warrant application,” or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial “motions” hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000).
Also, prosecutors are entitled to absolute immunity as to activities intimately associated with the judicial process, including expungement. See Gabriel v. El Paso Combined Cts., 842 Fed.Appx. 231, 234-35 (10th Cir. 2021) (Finding that the district court properly granted the district attorney and other prosecutorial employees absolute immunity because their “actions in opposing expunction or sealing in the state-court proceeding were intimately associated with the judicial process.”); Brown v. Del. Cty. Ct. of Common Pleas, 847 Fed.Appx. 134, 135 (3d Cir. 2021) (noting that “to the extent that Brown intended to state claims against the district attorneys who litigated his motion to expunge, they too would be immune from suit under § 1983”); James v. Wright, No. 2:22-CV-01444-TMC, 2023 WL 552268, at *3 (D.S.C. Jan. 27, 2023) (prosecutorial immunity shielded solicitor from the plaintiff's claim that the solicitor had a purported duty to expunge his criminal record). Therefore, to the extent Plaintiff is attempting to bring claims against Defendants Wilson and/or Mullen based on their participation in Plaintiff's criminal proceedings and/or expungement proceedings, his claims are barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”).
D. Requested Relief Not Available
In his Amended Complaint, Plaintiff asks that this Court determine if his actions in attempting to obtain a CWP would violate federal law. ECF No. 7 at 6-7. Plaintiff is, in effect, requesting that this Court issue an advisory opinion as to what may happen in the future. However, such action is barred by Article III of the United States Constitution. Preiser v. Newkirk, 422 U.S. 395, 401 (1975); see also Bowler v. Young, 55 Fed.Appx. 187, 188 (4th Cir. 2003); Norvell v. Sangre de Cristo Dev. Co., 519 F.2d 370, 375 (10th Cir. 1975) (federal courts do not render advisory opinions).
Plaintiff may also be attempting to have the Court interfere with the state expungement process. However, expungement of state criminal records “must be sought through the state court system.” Dennis v. Nat'l Railroad Passenger Corp., 34 Fed.Appx. 950 (4th Cir. 2002). Moreover, this Court cannot order the state court to issue a CWP to Plaintiff or to expunge his criminal charge(s). Federal courts have no general power to compel action by state courts. See In re Austin, 8 Fed.Appx. 253, 254 (4th Cir. 2001) (no jurisdiction to issue a writ of mandamus directing state court to issue order vacating the plaintiff's state misdemeanor convictions); Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988); Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir. 1969). Nor do federal courts have jurisdiction to review state court orders. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).
In South Carolina, “[a] person applying to expunge a criminal record shall obtain the appropriate blank expungement order form from the solicitor's office in the circuit where the charge originated.” S.C. Code Ann. § 17-22-930. South Carolina law further provides:
Denial of [a CWP] application may be appealed. The appeal must be in writing and state the basis for the appeal. The appeal must be submitted to the Chief of SLED within thirty days from the date the denial notice is received. The chief shall issue a written decision within ten days from the date the appeal is received. An adverse decision shall specify the reasons for upholding the denial and may be reviewed by the Administrative Law Court pursuant to Article 5, Chapter 23, Title 1, upon a petition filed by an applicant within thirty days from the date of delivery of the division's decision.S.C. Code Ann. § 23-31-215(D).
E. State Law Claims
Plaintiff may be attempting to allege that Defendants have violated South Carolina law by failing to issue him a CWP and/or by refusing to process his application for expungement. As Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States[.]” 28 U.S.C. § 1332. However, as discussed above, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action without prejudice, without further leave to amend, and without issuance and service of process
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
Plaintiff's attention is directed to the important notice on the 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. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).