Opinion
C. A. 4:24-cv-00452-BHH-KFM
02-27-2024
Michael Sgro, Plaintiff, v. City of Myrtle Beach, Myrtle Beach Police, Glen V. Ohanesian, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The plaintiff, a non-prisoner proceeding pro se and in forma pauperis, brings this civil action against the defendants. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court. The plaintiff's complaint was entered on the docket on January 29, 2024 (doc. 1). As set forth in more detail below, the undersigned recommends that the instant matter be summarily dismissed.
ALLEGATIONS
This is a civil action filed by the plaintiff regarding his alleged unlawful arrest by the defendants (doc. 1). The plaintiff alleges that he filed a complaint regarding his unlawful arrest on January 9, 2023 (id. at 5). He contends that he was falsely arrested because there was no conviction (id.). Of note, the instant matter appears to be in response to municipal charges brought against the plaintiff by the City of Myrtle Beach for trespassing on January 2, 2023. Horry County Public Index, https://publicindex. sccourts.org/Horry/PublicIndex/PISearch.aspx (enter 8102P1046193) (last visited February 27, 2024). The charge shows that the plaintiff was tried in his absence for failure to appear and a bench warrant was issued for him on February 1, 2024. Id.
See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that 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) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
STANDARD OF REVIEW
The 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). As a pro se litigant, the plaintiff's 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 (2007) (per curiam). 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).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘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).
DISCUSSION
As noted above, the plaintiff filed this civil action against the defendants seeking unknown damages. For the reasons that follow, the plaintiff's complaint is subject to summary dismissal.
The plaintiff's claims are barred by res judicata
In the instant matter, the plaintiff seeks to re-litigate claims that have already been adjudicated and decided adversely to him by this Court. Under the doctrine of claim preclusion-or res judicata-a final judgment on the merits of an action bars the parties from re-litigating the issues that were or could have been raised in the prior action. See Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004). In order for res judicata to apply, there must have been (1) a final judgment on the merits in a prior suit; (2) the identity of the cause of action in both suits; and (3) the same parties or their privies in the two suits. Id. at 354-55 (citing Nash Cnty. Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)); see Orca Yachts L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002) (noting that claim preclusion applies when there has been a valid and final judgment-even if the matter was not actually litigated (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996)). In evaluating whether the same cause of action is brought in both suits, the court ascertains whether the claim in the new litigation “arises out of the same transaction or series of transactions as the claim resolved by the prior judgment.” Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (internal quotation marks omitted) (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). Here, the plaintiff's complaint in this matter repeats allegations from his prior case - and even references his prior case (see doc. 1 at 5). In the prior case, the plaintiff's claims (involving the same arrest as challenged in this action) were dismissed with prejudice. See Sgro v. Fed. Bureau of Investigation, et al., C/A No. 4:23-cv-00096-BHH, 2024 WL 340785 (D.S.C. Jan. 30, 2024). Accordingly, the plaintiff's claims in this case are barred by res judicata.
The plaintiff's complaint is barred by Heck v. Humphrey
To the extent the plaintiff seeks money damages from the defendants for the adjudication of his trespassing charge in the Myrtle Beach Municipal Court, his claims are also barred by Heck. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that in order to recover damages for imprisonment in violation of the Constitution, the imprisonment must first be successfully challenged. Id. The Court stated:
We hold that, 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.Id. at 486-87 (footnote omitted); see also Edwards v. Balisock, 520 U.S. 641 (1997) (the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies which necessarily imply the invalidity of the judgment). This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). The plaintiff's complaint includes no indication that his charge was adjudicated in his favor - only asserting that there was no conviction (see doc. 1). Moreover, as noted, judicially-noticed, publicly-available online records for the Myrtle Beach Municipal Court indicate that the plaintiff was tried in his absence and a bench warrant issued in his trespassing case. See Horry County Public Index (enter 8102P1046193) (last visited February 27, 2024). The plaintiff's trespassing adjudication does not indicate a favorable termination; thus, his damages claim is barred by Heck.
The plaintiff's complaint fails to state a claim for relief
In addition to the foregoing, the plaintiff's complaint is also subject to summary dismissal for additional reasons, as outlined in more detail below.
Myrtle Beach Police Department
The MBPD is not a “person” as defined by § 1983, thus, it is entitled to summary dismissal. It is well settled that only “persons” may act under color of state law; thus, a defendant in a § 1983 action must qualify as a “person.” As noted, this defendant is not a person; hence, it is not subject to suit under 42 U.S.C. § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a state nor its officials acting in their official capacities are ‘persons' under § 1983.”); Rhodes v. Seventh Circuit Solicitors Ofc., C/A No. 9:09-cv-1863-JFA-BM, 2009 WL 2588487, at *3 (D.S.C. Aug. 19, 2009). Accordingly, MBPD is entitled to summary dismissal.
City of Myrtle Beach
To the extent the plaintiff's complaint can be construed as asserting a claim for municipal liability against the city of Myrtle Beach, his claim fails (see doc. 1). As an initial matter, municipalities and other local governing bodies are considered “persons” and may be sued under Section 1983. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). However, a county or city cannot be held liable pursuant to respondeat superior principles. Iqbal, 556 U.S. at 676. “[N]ot every deprivation of a constitutional right will lead to municipal liability. Only in cases where the municipality causes the deprivation ‘through an official policy or custom' will liability attach.” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citing Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)). As the Court of Appeals for the Fourth Circuit has stated:
A policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest [s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”Id. (quoting Carter, 164 F.3d at 217). Additionally, under Monell, municipal liability arises “only where the constitutionally offensive actions of employees are taken in furtherance of some municipal policy or custom.” Walker v. Prince George's Cnty., Md., 575 F.3d 426, 431 (4th Cir. 2009) (internal quotation marks and citations omitted). Here however, the plaintiff's vague and conclusory allegations have failed to allege any constitutionally offensive action by an individual defendant. See Evans v. Chalmers, 703 F.3d 636, 654-55 (4th Cir. 2012) (noting that when a plaintiff fails to state a § 1983 claim against individual officers, claims based upon supervisory and/or Monell liability also fail). As such, the plaintiff's claims against the city of Myrtle Beach are also subject to summary dismissal.
No Personal Allegations
Although defendant Judge Ohanesian is a person under § 1983, the plaintiff's complaint contains no personal allegations against him (see doc. 1). Indeed, it is unclear in what capacity this defendant was involved in the plaintiff's alleged constitutional deprivations. Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995); see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal involvement”). Moreover, as recently reiterated by the Fourth Circuit, general, conclusory, and collective allegations against groups of defendants fail to allege a plausible claim. See Langford v. Joyner, 62 F.4th 122, 124-25 (4th Cir. 2023) (recognizing that the plaintiff's complaint failed to meet the plausibility standard when it did not set forth who the defendants were beyond being employees where he was incarcerated or in what capacity the defendants interacted with the plaintiff). As such, the complaint fails to state a claim on which relief may be granted against Judge Ohanesian and he is subject to summary dismissal.
In addition to the foregoing, the plaintiff's claims against Judge Ohanesian also fail because he has judicial immunity. As noted, the plaintiff's complaint contains no allegations with respect to Judge Ohanesian (see doc. 1). Nevertheless, it is well-settled that judges have absolute immunity from a claim for damages 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, 356-64 (1978); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that 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 their authority. Id. at 12-13. Absolute immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511,526 (1985) (emphasis omitted). The plaintiff's allegations in this action are insufficient to overcome the judicial immunity afforded to Judge Ohanesian. See Gibson v. Goldston, 85 F.4th 218, 223-26 (4th Cir. 2023) (noting that judicial immunity did not apply where a family court judge engaged in a law enforcement capacity in engaging in a search of a litigant's home as part of property division proceedings in a divorce). As such, judicial immunity squarely applies and the plaintiff's § 1983 claims against Judge Ohanesian should be dismissed.
Frivolousness
The plaintiff's complaint is also subject to summary dismissal because it is frivolous. Here, the plaintiff's vague and nonsensical allegations that he has been unlawfully arrested by the defendants - with reference to another case in this court that was dismissed - do not raise a cognizable federal claim. It is well-settled that the court has the authority to dismiss claims that are obviously “fantastic” or “delusional.” Adams, 40 F.3d 7 at 74; Raiford v. FBI, C/A No. 1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), Report and Recommendation adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the irrational or the wholly incredible”). In reviewing a complaint for frivolousness or malice, the court looks to see whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Harley v. United States, 349 F.Supp.2d 980, 981 (M.D. N.C. 2004) (citing Neitzke v. Williams, 490 U.S. 319 (1989)). The Court must accept all well-pled allegations and review the Complaint in a light most favorable to plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Here, even when reviewed in a light most favorable to the plaintiff, the complaint is comprised of factual allegations that are not credible, and which fail to state a claim for relief. For example, the plaintiff's conclusory claim that the defendants violated his rights because there was no “conviction” for his charge and that he could not be tried in his absence if he did not show up for a trial on that charge, standing alone, is clearly delusional and frivolous, and fails to show any arguable basis in fact or law. See Feurtado v. McNair, No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). As such, the undersigned also recommends that this action be dismissed as frivolous.
Litigation History
Of note, the plaintiff in this matter has continued to file duplicative litigation in this court - and this is his third case asserting substantially similar frivolous allegations (although he voluntarily dismissed one case). See Sgro, 2024 WL 340785 (D.S.C. Jan. 30, 2024); Sgro v. Myrtle Beach Police Dep't, C/A No. 4:21-cv-01099-BHH, at doc. 14 (D.S.C. June 7, 2021) (noting voluntary dismissal of claims involving false arrest in Myrtle Beach). Further, in granting the plaintiff's motion for leave to proceed in forma pauperis, the undersigned noted that the plaintiff may be required to pay the filing fee at the conclusion of the case if the case was found to be without merit. See Flint v. Haynes, 651 F.2d 970, 972-74 (4th Cir. 1981). The plaintiff's duplicative filings have also hindered the court from fulfilling its constitutional duty. Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). As such, the undersigned recommends that the plaintiff be sanctioned.
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending the complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (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”).
The claims barred by Heck should be dismissed without prejudice.
Additionally, based upon the plaintiff's penchant for the filing of duplicative and frivolous actions in this court, the undersigned further recommends that the assigned United States District Judge sanction the plaintiff $405.00, payable to the Clerk of Court at 250 East North Street, Greenville, SC 29601, for filing this duplicative action. It is further recommended that in the event the plaintiff attempts to file another action in this Court before payment of the filing fee and sanction from this case, the Clerk of Court be authorized to assign civil action numbers (for docket control purposes) so that the undersigned may (1) instruct the plaintiff to pay the sanctions (and if the sanctions are not paid, dismiss the action without prejudice and without issuance and service of process) or (2) certify that the action is not frivolous. The attention of the parties 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 committees 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 250 East North Street, Room 2300 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).