Opinion
C/A No. 4:20-799-SAL-TER
04-13-2020
Steven Sakaski Robinson, #15051-171, Plaintiff, v. William F. Nettles, IV, A.F.P.D., Defendant.
Report and Recommendation
This is a civil action filed by a federal 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).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The 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 frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
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 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 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
Plaintiff alleges that he brings this action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). On March 10, 2020, the court gave Plaintiff notice and opportunity to file an amended complaint to attempt to cure deficiencies that would subject the action, as originally filed, to summary dismissal. The court specifically pointed to said deficiencies. (ECF No. 7). Plaintiff filed an Amended Complaint but failed to cure deficiencies. (ECF No. 14).
Plaintiff has not indicated that he is seeking to pursue an FTCA claim and was previously informed of requirements to garner jurisdiction under the FTCA. (ECF No. 7). Even if Plaintiff was seeking relief under the FTCA, he must have filed an administrative claim directly with the appropriate agency and obtain a final ruling. The exhaustion requirement under the FTCA is jurisdictional and may not be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990). Moreover, the United States is the only proper defendant in a FTCA claim. See 28 U.S.C. § 1346(b)(1); see 28 U.S.C. § 2679(b)(1) (personal capacity suits against employees are not cognizable under the FTCA). Here, Plaintiff did not indicate that he filed an administrative claim with the proper agency or sue a proper party under the FTCA.
Plaintiff alleges his counsel provided erroneous advice and coerced him into stipulations causing his "illegal incarceration." (ECF No. 14 at 5). Plaintiff requests "immediate release form false imprisonment." (ECF No. 14 at 5). Plaintiff requests monetary damages.
To the extent by Plaintiff's request for relief Plaintiff is requesting release from prison, habeas relief, such as release, is not available in civil actions. See Johnson v. Ozmint, 567 F. Supp. 2d 806, 823 (D.S.C. 2008).
Plaintiff sues his federal public defender. Defendant Nettles is subject to summary dismissal. Allen v. Lee, No. 8:15-504-RMG-KFM, 2015 WL 11102139, at *3 (D.S.C. Mar. 30, 2015), report and recommendation adopted, 2015 WL 11102140 (D.S.C. Apr. 20, 2015), aff'd, 614 Fed. Appx. 117 (4th Cir. 2015)(a federal public defender had not acted under color of state or federal law and was entitled to summary dismissal as a result)(citing Polk Cnty. v. Dodson, 454 U.S. 312, 317-24 (1981)). There is no amenable defendant in this action.
Additionally, Plaintiff alleges his claims are under Bivens. Bivens "established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eight Amendments are cognizable claims under the expansion of Bivens under particular contexts only. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979). The Supreme Court has not recognized an implied cause of action under Bivens for alleged violations of the Sixth Amendment. See Sharratt v. Murtha, 437 F. App'x 167, 170 (3rd Cir. 2011)[expressing doubt as to whether alleged violation of Sixth Amendment was a cognizable Bivens cause of action] (citing Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)); Reyes v. Sedillo, 222 Fed. Appx. 753, 754 n. 2 (10th Cir. 2007)[noting without deciding the issue of whether plaintiff can assert a cognizable Bivens cause of action for alleged violation of the Sixth Amendment](citing Malesko, 534 U.S. at 66-68 ).
Plaintiff does not allege that he has attempted to file the certain administrative exhaustion requirements under the FTCA that are different than prison grievances. He does not sue the United States, and it is the only proper defendant in a FTCA claim. See 28 U.S.C. § 1346(b)(1). To the extent Plaintiff's complaint asserts claims against a United States agency and/or its employees, they may not be sued under the FTCA. See 28 U.S.C. § 2679(b)(1) (personal capacity suits against employees are not cognizable under the FTCA); 28 U.S.C. § 2679(a) (agencies cannot be sued under the FTCA).Further, Congress limited the scope of the FTCA waiver "to a certain category of claims." Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)).
There has yet to be an extension of Bivens whereas action or inaction of a federal public defender arises to the level of a constitutional magnitude to be an action in which a federal prisoner can seek damages against an individual.
Plaintiff has been previously notified of the deficiencies, has been given an opportunity to amend his complaint, and has availed himself of that opportunity. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993); see also Grady v. White, No. 16-7722, 2017 WL 1437235 (4th Cir. April 24, 2017)(dismissing without remanding to district court because district court previously afforded Plaintiff the chance to amend his complaint). 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. Motion for Recusal
Plaintiff moves that the undersigned be disqualified from this action. Plaintiff argues the undersigned, based on prior court order, became an advocate for Defendant Nettles to protect "defendant a personal friend of magistrate judge" from suit. (ECF No. 13 at 1). Orders informing a plaintiff of deficiencies in a Complaint subjecting an action to summary dismissal and notice and opportunity to file an Amended Complaint are required by the Fourth Circuit Court of Appeals. Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619 (4th Cir. 2015). The undersigned filed such order in accordance with this case law.
Plaintiff's Motion for Recusal is denied. Plaintiff does not provide, and the Court is not aware of a basis for disqualification of the undersigned that would be appropriate in this matter. See 28 U.S.C. § 455. The undersigned is "presumed to be qualified, and there must be a substantial burden upon the affiant to show grounds for believing the contrary." Nakell v. Attorney Gen. of N.C., 15 F.3d 319, 325 (4 Cir. 1994); see also U.S. v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977) ("A judge is not disqualified merely because a litigant sues or threatens to sue him."). Under the objective standard, a reasonable outside observer, aware of all the facts and circumstances of this case, would not question the undersigned's impartiality. See id. at 286. Plaintiff's contentions do not establish a violation requiring recusal/disqualification. "To disqualify oneself in such circumstances would be to set the price of maintaining the purity of appearance too high —it would allow litigants to exercise a negative veto over the assignment of judges." U.S. v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)(internal citations and quotations omitted). Plaintiff is in essence challenging the merits of the decisions entered by the undersigned. The correct vehicle for such challenge is through the review/appellate process. Resolution of this motion is included in the Report and Recommendation submitted for consideration by the District Judge assigned to this case. Thus, as a part of that process, the District Judge may review the merits of this motion. Thus, Plaintiff's Motion for Recusal is denied.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action with prejudice and without issuance and service of process.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge April 13, 2020
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).