Opinion
C. A. 4:23-03694-MGL-MHC
02-13-2024
Leslie L. Tucker, III, Plaintiff, v. Todd Tucker, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by pro se Plaintiff Leslie L. Tucker, III. 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 (ECF No. 5) dated December 13, 2023, Plaintiff was directed to provide documents to bring his case into proper form. In the Order, Plaintiff was also notified of pleading deficiencies and given the opportunity to amend his Complaint. Plaintiff partially complied with the Proper Form Order and this case is now in substantially proper form. He filed an Amended Complaint on January 26, 2024. ECF No. 11.
I. BACKGROUND
Plaintiff is a pretrial detainee at the Florence County Detention Center. Records from Florence County indicate that Plaintiff has a pending charge (case number 2020A2110100706) for murder. See Florence County Twelfth Judicial Circuit Public Index, https://publicindex.sccourts. org/Florence/PublicIndex/PISearch.aspx [search case number listed above] (last visited Feb. 10, 2024).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
In his Amended Complaint, Plaintiff names Florence County deputy solicitor Todd Tucker as Defendant. He brings claims under 42 U.S.C. § 1983 (§ 1983). Plaintiff alleges that Defendant violated his right to due process in violation of his Sixth and Fourteenth Amendment rights, claiming that Defendant has maliciously prosecuted him. ECF No. 11 at 4. In his statement of his claims, Plaintiff provides a detailed account of the alleged incidents including the investigation and his interview with Florence County investigator Robert B. Price (Price), the alleged witnesses and/or informants in the case, and his preliminary hearing. Plaintiff appears to assert that Defendant and Price coerced a witness to say that Plaintiff was involved in the alleged murder, Defendant would not recommend a personal recognizance (PR) bail bond, Defendant failed to give Plaintiff a “fair shake” to be present at the preliminary hearing, Defendant failed to give him a “fair shake” to have a “trustworthy attorney,” Defendant failed to allow him to compel and review convenience store videotape evidence, and Defendant has not provided him with a speedy trial. See ECF No. 11 at 6-14. Plaintiff requests three million dollars in damages. ECF No. 11 at 15.
In another case filed in this court, Plaintiff brought claims against Price as well as assistant public defender Caroline Lawson and Judge Belinda Timmons. Lawson and Judge Timmons were summarily dismissed because Lawson was not a state actor under § 1983 and Judge Timmons was entitled to judicial immunity. Defendant Price's motion to dismiss was granted. See Tucker v. Price, No. 422CV01861MGLMHC, 2023 WL 7168684 (D.S.C. Sept. 21, 2023), report and recommendation adopted, 2023 WL 7166244 (D.S.C. Oct. 27, 2023).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), 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). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Prosecutorial Immunity
Defendant should be dismissed from this action because, based on the facts alleged, he is 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, 341343 (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). Therefore, because Plaintiff is attempting to assert claims against Defendant based on Defendant's participation in Plaintiff's criminal 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”).
B. Malicious Prosecution
Plaintiff alleges that Defendant has maliciously prosecuted him. To state a claim for malicious prosecution under § 1983, a plaintiff must establish that (1) the defendant seized the plaintiff “pursuant to legal process that was not supported by probable cause,” and (2) “the criminal proceedings terminated in the plaintiff's favor.” Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012) (internal citations omitted). As noted above, the murder charge for which Plaintiff was arrested is still pending against him. Plaintiff has not alleged that his criminal proceedings terminated in his favor and, thus, he fails to state a claim for malicious prosecution.
C. Interference with Pending Criminal Prosecution/ Younger
To the extent Plaintiff alleges that his right to a speedy trial, his due process rights, his First Amendment, his Sixth Amendment, and/or his Fourteenth Amendment rights have been violated, this amounts to a request that this Court intervene in his criminal case, such that this action is subject to summary dismissal. In Younger v. Harris, 401 U.S. 37 (1971), the United States Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). Specifically, the Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44. From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).
Petitioner is currently detained and awaiting trial on a pending state criminal charge, thus satisfying the first prong of the abstention test. See Boyd v. South Carolina, No. 1:11-cv-02981-TMC-SVH, 2012 WL 786341, at *2 (D.S.C. Feb. 10, 2012), report and recommendation adopted, 2012 WL 786356 (D.S.C. Mar. 9, 2012) (noting the first prong of the abstention test is satisfied where the petitioner “is currently awaiting trial in an ongoing state criminal proceeding”). The second criterion has been addressed by the Supreme Court's holding that “the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief[,]” Kelly v. Robinson, 479 U.S. 36, 49 (1986). Finally, the third criterion is satisfied because Plaintiff can address his claims in his pending criminal proceedings. Gilliam, 75 F.3d at 904 (noting that “ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights”) (referencing Kugler v. Helfant, 421 U.S. 117, 124 (1975)). Because Plaintiff's case meets all three criteria for abstention under Younger, federal relief is available under § 1983 only if “special circumstances” justify the provision of federal review. Dickerson v. Louisiana, 816 F.2d 220, 224-26 (5th Cir. 1987).
While “special circumstances” lacks any precise, technical meaning, courts have essentially looked to whether procedures exist which would protect a petitioner's constitutional rights without pre-trial intervention; thus, where a threat to the petitioner's rights may be remedied by an assertion of an appropriate defense in state court, no special circumstance is shown. Moore v. DeYoung, 515 F.2d 437, 449 (3d Cir. 1975); cf. Drayton v. Hayes, 589 F.2d 117, 121 (2d Cir. 1979) (double jeopardy claim entitled to pretrial habeas intervention because the “very constitutional right claimed ... would be violated” if petitioner were forced to go to trial). Further, where the right may be adequately preserved by orderly post-trial relief, special circumstances are likewise nonexistent. Moore, 515 F.2d at 449. In Moore, the court concluded that the federal court should abstain from considering a speedy trial claim at the pretrial stage because the claim could be raised at trial and on direct appeal. Id.; see generally United States v. MacDonald, 435 U.S. 850 (1978); Dickerson, 816 F.2d at 226-227.
Here, Plaintiff has been appointed defense counsel and can raise his claims in his underlying criminal case. See, e.g., Bennekin v. Baugh, No. 4:14-cv-4004, 2014 WL 6909017, at *3 (D.S.C. Dec. 8, 2014) (finding that plaintiff was not foreclosed from raising delayed indictment claim and having it ruled on “by the state court judge in his on-going state criminal prosecution”); Holmes v. Grant, No. 4:22-cv-3459-MGL-TER, 2022 WL 19331394, at *1-2 (D.S.C. Nov. 2, 2022) (finding no extraordinary circumstances where petitioner argued that his criminal proceedings were not being conducted in a timely manner), report and recommendation adopted, 2023 WL 2717362 (D.S.C. Mar. 30, 2023); Westpoint v. Al Cannon, No. 9:17-cv-2137-RMG-BM, 2017 WL 5004812, at *2 (D.S.C. Oct. 6, 2017) (dismissing federal action pursuant to Younger because detainee was able to raise claims of procedural delay during state court proceedings), report and recommendation adopted, 2017 WL 5027497 (D.S.C. Oct. 30, 2017); Nat'l Home Ins. Co. v. State Corp. Comm'n of Com. of Va., 838 F.Supp. 1104, 1119 (E.D. Va. 1993) (noting that “[m]ere delay ... in pending state court proceedings” does not demonstrate the extraordinary circumstances or “irreparable injury” that precludes abstention under Younger). Because Plaintiff can pursue his constitutional claims in state court, he cannot demonstrate “special circumstances,” or show that he has no adequate remedy at law and will suffer irreparable injury if denied his requested relief. Thus, Plaintiff is precluded from relief at this time.
Records from Florence County indicate that Plaintiff is currently represented by attorney Ralph J. Wilson, Sr., and that a motion for discovery and disclosure of evidence has been filed.
Moreover, Plaintiff's requests may amount to a request for release from detention, which is not available in this § 1983 civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length or duration of confinement is within the core of habeas corpus).
D. State Law Claims
To the extent Plaintiff may be attempting to assert claims under South Carolina state law, such claims should be dismissed. 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, 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 Defendant are citizens of South Carolina.
Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. 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 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”). Here, any attempt to cure the deficiencies in the complaint would be futile for the reasons discussed above.
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. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).