Opinion
2:22-cv-03888-BHH-MGB
11-29-2022
John Singletary, Plaintiff, v. Election System & Software; South Carolina Election Commission; Charleston County Board of Election and Voter Registration; Dorchester County Board of Election and Voter Registration; City of North Charleston; Marci Andino; Joe Debney; Larry Cramer; Todd Billman; Beverly Varnado; Queen Bowman; Carolyn Lecque; Samuel Howell; Grace Boland; Ed Barfield; Brady Hair; Ron Brinson; Keith Summey; and John Does, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff John Singletary, proceeding pro se, brings this action challenging the results of the City of North Charleston's 2019 Mayoral Election. This case is now before the Court on Plaintiff's Emergency Motion for Expedited Hearing and Request for Injunction. (Dkt. No. 3.) Under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review all pretrial matters in this case and submit findings and recommendations to the assigned United States District Judge. For the reasons discussed below, the undersigned recommends that Plaintiff's motion be denied at this time.
By way of background, the instant action stems from an election protest filed by Plaintiff challenging the City of North Charleston's Mayoral Election conducted November 5, 2019, in which Plaintiff lost to fellow candidate Keith Summey by 1,558 votes. Among other claims, Plaintiff argued that many of the voting machines and/or software provided by Defendant Election System Software, Inc. (“ESS”) did not function properly and produced erroneous results. On November 11, 2019, the Board of Voter Registration and Elections for Charleston County (the “Board”) denied Plaintiff's protest and upheld the results of the election in open session.
On November 22, 2019, Plaintiff filed an appeal with the Charleston County Court of Common Pleas pursuant to S.C. Code § 5-15-140.(Case No. 2019-CP-10-06115.) The circuit court held a hearing on December 14, 2021, during which Plaintiff anticipated arguing a number of pending motions he had filed, including a motion seeking discovery for certain “source code” data originating from ESS's voting machinery/software used in the election. Notwithstanding Plaintiff's numerous outstanding motions, the presiding judge expressly declined to address them, finding that the circuit court had “no jurisdiction to take any action, other than rule on the appeal itself”-in other words, the circuit court's decision was limited to one of two outcomes: “send [the protest] back for a new hearing, or the decision of the [Board] stands.”
A federal court may take judicial notice of the contents of its own records, as well as those public records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). The undersigned therefore takes judicial notice of the records and exhibits filed in Plaintiff's underlying state court action before the Charleston County Court of Common Pleas. See https://jcmsweb.charlestoncounty.org/PublicIndex/ (last visited November 29, 2022). The contents of the aforementioned election protest can also be found within these records, attached to Plaintiff's “Post-Hearing Brief on (15) Motions & Motion for Rehearing 60(b)” filed January 19, 2022.
The undersigned references the hearing transcript attached to Plaintiff's “Post-Hearing Brief on (15) Motions & Motion for Rehearing 60(b)” filed January 19, 2022, and the circuit court's Order Denying Appeal and Other Pending Motions filed February 7, 2022.
Following the hearing, Plaintiff filed a motion for relief from judgement or order pursuant to Rule 60(b), S.C.R.C.P., on the basis that his pending motions were “unjustly ignored,” including his motion for discovery on source code data from ESS. In an order filed February 7, 2022, the circuit court concluded that Plaintiff was “not capable of changing or making doubtful the result of the certified election” and, thus, denied his appeal.In that same order, the court denied all other outstanding motions filed by Plaintiff, maintaining that it did not have jurisdiction to consider the same under S.C. Code § 5-15-140. On March 18, 2022, Plaintiff filed a motion to alter or amend the judgment pursuant to Rule 59, S.C.R.C.P., contending that, at the time of scheduling, the purpose of the December hearing was to address Plaintiff's pending motions; the judge's decision to instead deny the appeal and effectively terminate the case was therefore “overreaching” and “illegal.” The circuit court denied Plaintiff's motion on March 22, 2022, prompting him to file a motion “for trial” and/or “a hearing on the merits of the case,” reiterating that the December hearing should not have been “dispositive.” Plaintiff's most recent motion remains pending.
The undersigned references the circuit court's Order Denying Appeal and Other Pending Motions filed February 7, 2022.
It is against this background that Plaintiff filed the instant case on November 4, 2022, once again challenging the outcome of the City of North Charleston's 2019 Mayoral Election and renewing many of the same arguments raised in his municipal and state proceedings. (Dkt. No. 1.) In filing the Complaint, Plaintiff also brought an Emergency Motion for Expedited Hearing and Request for Injunction (Dkt. No. 3), seeking “an emergency hearing to prevent irreparable harm” resulting from the circuit court's purported failure to hear all of Plaintiff's motions during the December hearing and its attempt to deny his appeal thereafter. (See id. at 2, suggesting that Plaintiff was entitled to a hearing on the merits of his appeal, but the hearing “has not been rescheduled and is being denied in violation of Plaintiff's constitutional due process and equal protection rights.”) Plaintiff also requests “an injunction on ESS's use of its product's source code” until “this court determines through scientific and mathematical proof . . . the product is safe for use and will not produce multiple final election results for the same election.” (Id.)
Because Plaintiff appears to seek immediate injunctive relief, the undersigned construes his motion as a request for a temporary restraining order or preliminary injunction. Such relief is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also Collins v. Bernedette, No. 2:22-cv-1391-RMG, 2022 WL 16951738, at *1 (D.S.C. Nov. 15, 2022) (“A preliminary injunction is an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.”) (internal citations and quotation marks omitted). Thus, a temporary restraining order or preliminary injunction should issue only when the movant has established all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in his favor; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20; see also Henderson for Nat'l Lab. Rels. Bd. v. Bluefield Hosp. Co., LLC, 902 F.3d 432, 439 (4th Cir. 2018) (noting that “Winter made clear that each of these four factors must be satisfied to obtain preliminary injunctive relief”); Virginia v. Kelly, 29 F.3d 145, 147 (4th Cir. 1994) (showing that the standard for a temporary restraining order is the same as that applied to motions for preliminary injunction).
Beyond referencing “irreparable harm,” Plaintiff does not substantively address the individual Winter factors in his Emergency Motion for Expedited Hearing and Request for Injunction; nevertheless, the undersigned finds that the factors plainly weigh against granting Plaintiff's motion at this time. As a threshold matter, it is well-established that “federal courts have no general power to compel action by state officials.” See Dais v. Huggins, No. 8:08-cv-3629-JFA-BH, 2008 WL 5062329, at *2 (D.S.C. Nov. 20, 2008) (referencing Davis v. Lansing, 851 F.2d 72, 74 (2nd Cir. 1988)); see also Bell v. South Carolina, No. 2:17-cv-2176-TMC-MGB, 2017 WL 6767385, at *4 (D.S.C. Aug. 24, 2017) (“Federal courts generally may not issue a writ of mandamus to compel state officials to perform a duty allegedly owed to a petitioner.”), adopted, 2018 WL 263817 (D.S.C. Jan. 2, 2018), aff'd, 724 Fed.Appx. 204 (4th Cir. 2018). Consequently, to the extent Plaintiff is asking this Court to order some sort of hearing in the underlying state proceedings-i.e., directing the state court to consider Plaintiff's unresolved motions and/or the merits of his appeal-such relief is simply unavailable. See, e.g., Bell v. Stirling, No. 1:22-cv-1319-TMC-MGB, 2022 WL 5236739, at *6 (D.S.C. Aug. 31, 2022) (finding that federal district court could not order state court “to take certain action with respect to [plaintiff's] request for postconviction DNA testing in his underlying case”), adopted, 2022 WL 4462951 (D.S.C. Sept. 26, 2022); Bell v. Reynolds, No. 8:08-cv-3799-GRA-BHH, 2009 WL 152586, at *2 (D.S.C. Jan. 6, 2009) (explaining that relief was unavailable where plaintiff asked federal district court to order Aiken County Court of General Sessions to rule in a certain way), adopted, 2009 WL 152589 (D.S.C. Jan. 22, 2009), aff'd, 335 Fed.Appx. 318 (4th Cir. 2009).
Moreover, to the extent Plaintiff is asking this Court to evaluate the constitutionality of his state court proceedings, Plaintiff does not formally raise any such claims in the Complaint itself. Rather, Plaintiff's frustrations regarding the circuit court's blanket dismissal of his various motions and subsequent denial of his appeal are limited to the Emergency Motion for Expedited Hearing and Request for Injunction. Plaintiff cannot possibly prevail on the merits of such claims if they are not before the Court as part of this federal action.
To be sure, this Court's review would likely be barred under the Younger abstention doctrine in any event, as federal district courts are prohibited from interfering with ongoing state court proceedings. Younger v. Harris, 401 U.S. 37, 91 (1971); see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (noting that the Younger doctrine applies to civil proceedings that implicate a state's interest in enforcing the orders and judgment of its courts). As noted above, Plaintiff recently challenged the state court's denial of his appeal in a motion “for trial” and/or “a hearing on the merits,” arguing that the December hearing was not intended to “dispose of the case” and the state court's actions in doing so violated his right to due process. Because these issues appear to be pending before the circuit court, the undersigned is inclined to abstain from hearing the same constitutional challenges to those state judicial proceedings, no matter how meritorious, until the state court has spoken. See Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989 (explaining that “federal courts should abstain from the decision of constitutional challenges to state action”); see also Victoria v. Bodiford, No. 8:21-cv-01836-JMC, 2021 WL 3726707, at *2 (D.S.C. Aug. 20, 2021) (“What lies behind Younger is the premise that state courts are capable of adequately protecting constitutional rights.”). Thus, Plaintiff simply cannot demonstrate that he is likely to succeed on the merits of any claims challenging the state court's actions at this time.
Turning to Plaintiff's request for “an injunction on ESS's use of its product's source code,” the undersigned likewise finds no clear indication that Plaintiff is likely to succeed on the merits, as evidenced by his own suggestion that the reliability of the company's voting software will require extensive expert review before the Court can reach a conclusion. (See Dkt. No. 3 at 2.) See Ruiz v. NationStar Mortg. LLC, No. 8:17-cv-3434-PWG, 2018 WL 3975635, at *2 (D. Md. May 18, 2018) (explaining that a plaintiff cannot meet the “rigorous” standard under Winter by simply presenting “a mere grave or serious question for litigation,” but rather, must show that he “will likely succeed on the merits”) (emphasis in original) (internal citations and quotation marks omitted). Additionally, Plaintiff cannot demonstrate that he is likely to suffer irreparable harm if this Court allows ESS to continue its operations because the injury of which Plaintiff complains- losing the City of North Charleston's 2019 Mayoral Election-has already occurred. Indeed, the continued use of ESS's voting software in other venues and elections will not personally affect or cause further harm to Plaintiff as a former mayoral candidate and, thus, does not warrant the severe remedy of an injunction. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (noting that the required “irreparable harm” must be “neither remote nor speculative, but actual and imminent”).
To rule otherwise would run afoul of the Fourth Circuit's prohibition against pro se individuals litigating on behalf of others, including the general public. See Wojcicki v. SCANA/SCE&G, 947 F.3d 240, 244 (4th Cir. 2020) (noting that the Fourth Circuit has rejected “the right of individuals to litigate pro se on behalf of others”); Thompson v. Adams, No. 3:06-cv-2599-MBS, 2006 WL 3140334, at *4 (D.S.C. Oct. 27, 2006) (noting that “Plaintiff cannot sue for others' injuries, only for his own”).
For the reasons discussed above, the undersigned finds that Plaintiff is not entitled to an emergency hearing or preliminary injunction under the Winter factors and therefore recommends that the Court deny Plaintiff's request for the same.
IT IS SO RECOMMENDED.
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 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).