Opinion
C. A. 6:21-cv-00521-JMC-JDA
03-05-2021
Kirk Willis, Plaintiff, v. State of South Carolina, South Carolina Department of Corrections, City of Clinton Public Safety, Laurens County Detention Center, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Kirk Willis (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging Defendants violated his rights under the United States Constitution. Plaintiff filed this action in forma pauperis under 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. For the reasons explained below, the Complaint is subject to summary dismissal.
BACKGROUND
Plaintiff makes the following allegations in his Complaint. [Doc. 1.] Plaintiff claims his trial counsel, Attorney Bryan C. Able, was ineffective because he did not request a preliminary hearing, even though he knew Plaintiff was innocent. [Id. at 5.] Plaintiff contends that the victim, witnesses, and police officers in his state court criminal case were lying and that his attorneys helped them. [Id.] Plaintiff contends he was not indicted on his charges until 442 days after he was arrested and incarcerated. [Id.] For his relief, Plaintiff requests that his convictions be removed from his criminal record because he went to prison wrongfully. [Id.] Plaintiff contends he suffers from post-traumatic stress disorder and was put on medicine in July 2016. [Id.] Plaintiff claims he was imprisoned from August 8, 2014, until January 1, 2017. [Id.] Plaintiff requests to be compensated for his imprisonment. [Id.]
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which 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). Thus, even if Plaintiff had prepaid the full filing fee, this Court would still be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his 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, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the Court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
DISCUSSION
The 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) (quoting 42 U.S.C. § 1983). 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). Plaintiff's Complaint is subject to summary dismissal for the reasons below.
Plaintiff's action is duplicative Plaintiff's Complaint filed in this case raises claims similar to those asserted in three other cases previously filed by Plaintiff in this Court. See Willis v. State of South Carolina, No. 6:15-cv-2909-JMC-JDA (D.S.C. Jul. 28, 2015), Willis v. Director of Laurens Cty. Det. Ctr., No. 8:15-cv-3427-JMC-JDA (D.S.C. Aug. 27, 2015), and Willis v. Clinton Pub. Safety, No. 6:20-cv-1854-JMC-JDA (D.S.C. May 13, 2020). Significantly, Plaintiff is attempting to re-assert the same claims against the same Defendants under the same facts as his most recent case at No. 6:20-cv-1854.
A court may take judicial notice of its own records. See Philips v. Pitt Cty. 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.'”).
Because the present action is duplicative of Plaintiff's other cases, which have all been dismissed, this action also warrants dismissal. “[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.” Paul v. de Holczer, No. 3:15-cv-2178-CMC-PJG, 2015 WL 4545974, at *6 (D.S.C. July 28, 2015) (holding that “the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency”), aff'd 631 Fed.Appx. 197 (4th Cir. Feb. 4, 2016); see also Cox v. Cartledge, No. 3:13-cv-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013), Report and Recommendation adopted by 2013 WL 1401674 (D.S.C. April 8, 2013) (same). The Fourth Circuit Court of Appeals has instructed that, “[b]ecause district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, at *1 (4th Cir. Aug.14, 2000) (unpublished table decision) (citing Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992) (“district courts may dismiss duplicative complaints under section 1915”)); Wilkins v. Harley, No. 6:11-cv-3463-MBS-KFM, 2012 WL 256566, at *2 (D.S.C. Jan. 12, 2012) (“this duplicate § 1983 Complaint is frivolous and subject to summary dismissal”), Report and Recommendation adopted by 2012 WL 260159 (D.S.C. Jan. 27, 2012). Therefore, in the interests of judicial economy and efficiency, because the present lawsuit is a meritless duplicate of Plaintiff's prior lawsuits, the present case is frivolous and subject to summary dismissal. See Lester v. Perry Corr. Inst., No. 4:12-cv-971-TMC-TER, 2012 WL 1963592, at *3 (D.S.C. May 10, 2012), Report and Recommendation adopted by 2012 WL 1963566 (D.S.C. May 31, 2012), aff'd, 479 Fed.Appx. 509 (4th Cir. 2012); see also Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (“The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient.”).
Defendants are entitled to dismissal.
Additionally, all four Defendants named in this action are entitled to dismissal for the reasons below.
The undersigned notes that Plaintiff makes various allegations in his Complaint against Bryan C. Able and Aaron Taylor, who were Plaintiff's public defenders in his state criminal proceedings. Nevertheless, Plaintiff has not named Attorneys Able and Taylor as Defendants in this action. Even if Plaintiff had named these individuals as Defendants, his claims against them would fail because they are not state actors for purposes of § 1983. As noted, to state a § 1983 claim, Plaintiff must allege that he was deprived of a constitutional right by a person acting under the color of state law. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). However, “a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” Polk Cty. v. Dodson, 454 U.S. 312, 317, 325 (1981); see also Hall v. Quillen, 631 F.2d 1154, 1156 (4th Cir. 1980) (concluding a court-appointed attorney was entitled to dismissal of the plaintiff's § 1983 claim against him for want of state action); Curry v. South Carolina, 518 F.Supp.2d 661, 667 (D.S.C. 2007) (explaining public defenders are not state actors under § 1983 and thus are entitled to dismissal). Accordingly, to the extent Plaintiff intends to name Attorneys Taylor and Able as Defendants, they would be entitled to summary dismissal.
First, Plaintiff makes no factual allegations against Defendants, but simply lists them in the caption of his Complaint. Accordingly, Defendants are entitled to summary dismissal because Plaintiff provides no factual allegations against them to assert a plausible claim for relief under § 1983. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.”); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (explaining a complaint is subject to summary dismissal where no factual allegations against the named defendants are found within the body of the pleading). In the absence of substantive allegations of wrongdoing against Defendants, there is nothing from which this Court can liberally construe any type of plausible cause of action arising from the Complaint against them. See Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (noting statute allowing dismissal of in forma pauperis claims encompasses complaints that are either legally or factually baseless); Weller, 901 F.2d at 389 n.2 (noting dismissal is proper where there were no allegations to support claim).
Further, none of the named Defendants are considered persons under § 1983. It is well settled that inanimate objects such as buildings, facilities, and grounds do not qualify as “persons” and cannot act under color of state law. See Nelson v. Lexington Cty. Det. Ctr., No. 8:10-cv-2988-JMC, 2011 WL 2066551 (D.S.C. May 26, 2011) (noting the detention center was a building that was not amenable to suit under § 1983); Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D. N.C. 1989) (“Claims under § 1983 are directed at ‘persons' and the jail is not a person amenable to suit.”). Similarly, the staff of an organization is not considered a person subject to suit under 42 U.S.C. § 1983, and groups of people may not be sued under § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a person pursuant to § 1983); Dalton v. SCDC, No. 8:09-cv-260-CMC-BHH, 2009 WL 823931, at *2 (D.S.C. March 26, 2009) (dismissing the medical staff of SCDC and Prison Health Services as defendants because they were not persons). “As to SCDC, it is well-settled that an agency of the state is not a person within the meaning of § 1983, and thus is not a proper defendant.” Weddington v. SCDC, No. 8:08-cv-1652-GRA-BHH, 2009 WL 473510, at *2 (D.S.C. Feb. 24, 2009) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)); see also Peoples v. SCDC, No. 8:07-cv-1203-CMC-BHH, 2008 WL 4442583, at *1 (D.S.C. Sept. 25, 2008) (same). Therefore, because each of the named Defendants may be considered an inanimate object, staff, or a group of people, and are not considered persons under § 1983, they should be dismissed for failure to state a claim against them.
Plaintiff's claim for money damages is barred by Heck
Finally, Plaintiff's claim for money damages is barred by the Heck doctrine. The crux of this action appears to be a challenge to Plaintiff's conviction and incarceration. For his relief, Plaintiff purports to seek money damages for the allegedly unlawful prosecution, conviction, and incarceration.
The undersigned notes that it does not appear that Plaintiff is presently incarcerated. However, to the extent that Plaintiff is seeking release from custody, such relief is not available in this 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) (explaining a challenge to the duration of confinement is within the core of habeas corpus).
Further, to the extent that Plaintiff is seeking money damages based on his allegedly unlawful arrest, prosecution, and incarceration, his claim is barred because his convictions and sentences have not been invalidated. Therefore, a cause of action has not accrued. Plaintiff was arrested on August 8, 2014, he was indicted for the crimes of criminal domestic violence and attempted murder, and he was convicted of those crimes and sentenced to a term of imprisonment of five years. However, the Complaint is completely devoid of any allegations that Plaintiff's conviction or sentence has been overturned.
In Heck, the Supreme Court explained 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.Heck, 512 U.S. at 481. Further, the Supreme Court stated that,
. . . when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.Id. This is known as the “favorable termination” requirement, which Plaintiff has not alleged he has satisfied. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008).
The Heck holding applies to this case. Plaintiff seems to allege that Defendants acted improperly by denying him due process, denying him a preliminary hearing, failing to properly indict him, wrongfully incarcerating him, denying him a preliminary hearing, and lying about matters related to his case. [Doc. 1 at 3, 5, 7.] However, Plaintiff does not allege that his conviction has been invalidated, for example, by a reversal on direct appeal or a state or federal court's issuance of a writ of habeas corpus. A favorable determination on the merits of Plaintiff's § 1983 claim would imply that his conviction was invalid. Thus, this § 1983 claim should be dismissed because a right of action has not accrued.
RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court dismiss this action without issuance and service of process. See Neitzke, 490 U.S. at 324-25.
The undersigned notes that any attempt to cure the deficiencies in the Complaint would be futile for the reasons stated herein. In light of the allegations in the Complaint, together with the state court records and Plaintiff's prior cases filed in this Court, the undersigned finds that no set of facts can support Plaintiff's asserted claims for relief. Accordingly, the District Court should dismiss this action without affording Plaintiff an opportunity to amend his Complaint. See Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 n.7 (D.S.C. Oct. 2, 2018) (declining to grant an opportunity to amend where amendment would be futile); Young v. Santos, No. GLR-16-cv-1321, 2018 WL 1583557, at *6 (D. Md. Apr. 2, 2018) (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 300 East Washington Street, Room 239 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).