Opinion
C/A No. 6:17-499-MGL-TER
03-29-2017
Irvin Jefferson Wilson, #0284, a/k/a Irvin Jefferson Wilson, #158202, a/k/a Irvin Jefferson Wilson, #0811, Plaintiff, v. J.M. Cutler, Police Officer, Greenville, South Carolina, Law Enforcement Department; Nicob Ball, Signature of Constable Law Enforcement Officer, State of South Carolina, Thirteenth Judicial Circuit; B.W., Alleged Witness for the State; The Solicitor's Office, Prosecutor Assigned to Plaintiff's Charge, Thirteenth Judicial Circuit, Greenville, South Carolina, Steward Sarratt, Defense Lawyer, Thirteenth Judicial Circuit, State of South Carolina; Defendants.
Report and Recommendation
This is a civil action filed by Plaintiff, a pretrial detainee proceeding in forma pauperis and pro se. 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 cases and submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e), 1915A.
BACKGROUND
Plaintiff alleges that the Defendants violated the Fourth, Fifth, Sixth, and Fourteenth Amendments, Title VII, and Brady. (ECF No. 1 at 6). Plaintiff alleges that Defendant Cutler violated Plaintiff's freedom of movement when he was arrested. (ECF No. 1 at 7). Plaintiff alleges that Defendant Ball violated Plaintiff's freedom of movement when she ordered the jailer to detain Plaintiff in Greenville County. Plaintiff states he did not consent to the arrest or detention. Plaintiff alleges that Defendant B.W. was a witness who signed a statement and gave the statement to Defendant Cutler. (ECF No. 1 at 7-8). Defendant Cutler used the statement to obtain an indictment and arrest warrant. (ECF No. 1 at 8). Plaintiff then states there was no grand jury indictment. Plaintiff alleges the solicitor gave the arrest warrant to Defendant Cutler. (ECF No. 1 at 9). Plaintiff alleges the solicitor failed to file a "no bill."
Plaintiff alleges his defense counsel, Defendant Sarratt, failed to prepare and investigate. Plaintiff alleges a claim for false arrest. Plaintiff alleges that he has been falsely arrested before without indictments by the state grand jury and the arrests are based on the fact Plaintiff is a black male.
Plaintiff has filed a similar § 1983 action based on similar allegations and claims but a different incident. This court summarily dismissed the prior action. See Wilson v. Braham, et al, No. 6:15-4835-MGL-TER (D.S.C. Feb. 29, 2016).
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 brings this action pursuant to 42 U.S.C. § 1983. Section 1983 "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) (internal quotation and citation omitted). A legal action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Under § 1983, a plaintiff must establish 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 color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
In order to assert a plausible § 1983 claim against any particular state actor, a "causal connection" must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights).
The Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir. 2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). Defendant B.W.
Plaintiff alleges that Defendant B.W. is a witness against him and generally states Defendant B.W. is thus a state actor. In order to state a claim under § 1983, Plaintiff must allege that a constitutional violation"was committed by a person acting under the color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff makes no allegations how Defendant B.W.'s actions constitute conduct "fairly attributable to the State" to implicate 42 U.S.C. § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). To become state action, private action must have a "sufficiently close nexus" with the state that the private action "may be fairly treated as that of the State itself." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)(internal citation and quotation omitted). The Complaint does not allege state action by Defendant B.W. for § 1983 purposes and Defendant B.W., as a defendant, is subject to summary dismissal without issuance and service of process. Defendant Solicitor
To the extent, Plaintiff attempts to name the solicitor in charge of prosecuting Plaintiff as a Defendant, such Defendant is subject to summary dismissal. Prosecutors are protected by immunity for activities in or connected with judicial proceedings. Van de Kamp v. Goldstein, 555 U.S. 335, 338-44 (2009); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000). Prosecutors, when acting within the scope of their duties, have absolute immunity from damages liability under § 1983 for alleged civil rights violations committed in the course of proceedings that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The undersigned recommends summary dismissal without issuance and service of process as to the claims against Defendant Solicitor. Defendant Sarratt
Plaintiff names his public defender as a Defendant. An attorney, whether retained, court appointed, or a public defender does not act under color of state law or federal law, which is a jurisdictional prerequisite for any civil action brought under 42. U.S.C. § 1983. See Polk County v. Dodson, 454 U.S. 312, 317-24 nn. 8-16 (1981) (public defender); Georgia v. McCollum, 505 U.S. 42, 53 (1992) (public defender); Hall v. Quillen, 631 F.2d 1154, 1155-56, nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (per curiam) (private attorney). Thus, Defendant Sarratt is not amenable to suit under § 1983 and is entitled to summary dismissal from this case. Defendants Cutler and Ball
Plaintiff asserts that his Fourth Amendment rights have been violated and asserts Defendants Cutler and Ball were involved in his arrest and detainment. Plaintiff makes numerous references to his arrest warrant 2017A2320600-203. Plaintiff alleges that probable cause did not exist to arrest him. (ECF No. 1 at 8). Plaintiff alleges he was falsely arrested and falsely detained. (ECF No. 1 at 11). Plaintiff alleges that there was not "any evidence to make his arrest." (ECF No. 1 at 12). Plaintiff also indicates under "Prisoner Status" that he is a pretrial detainee and he wrote in "false arrest/ excessive force." (ECF No. 1 at 10).
Under a liberal construction, Plaintiff alleges a claim for false arrest and a claim for malicious prosecution.
Additionally, Plaintiff's claims are lacking in detail under Rule 8. Rule 8 of the Federal Rules of Civil Procedure requires that complaints contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose behind Rule 8 is "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted). Further, the plaintiff is obligated to provide "more than labels and conclusions[;] a formulaic recitation of the elements of a cause of action will not do ..." Id. Even though a pro se plaintiff's pleadings are to be liberally construed, a pro se complaint must still contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Id. at 555, 570; see also Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 252 (4th Cir. 2005). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id. Defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved." Twombly, 550 U.S. at 565 n. 10. Complaints should contain facts in regard to who did what to whom and when. Id.
Under § 1983, "a public official cannot be charged with false arrest when he arrests a defendant pursuant to a facially valid warrant." Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998)(internal citations omitted). The Fourth Circuit reiterated that "a false arrest claim must fail where it is made pursuant to a facially valid warrant." Dorn v. Town of Prosperity, 375 Fed. Appx. 284, 286 (4th Cir. 2010) (internal quotations and citations omitted). Based on Plaintiff's submissions, he was arrested pursuant to a facially valid warrant, any false arrest claims must be dismissed.
A claim that one is wrongfully detained because his arrest was made pursuant to a warrant that was not supported by probable cause, is a claim for malicious prosecution. See Porter field, 156 F.3d at 568; see also Wallace v. Kato, 549 U.S. 384, 389-90 (2007). To state a malicious prosecution claim, Plaintiff must show at least, that "defendant[s] have seized [plaintiff] pursuant to legal process that was not supported by probable cause and that the criminal proceedings [have] terminated in [plaintiff's] favor." Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)(internal citations and quotations omitted). The U.S. Supreme Court provided in Heck v. Humphrey, 512 U.S. 477 (1994) that until a conviction was set aside or charges finally dismissed without the possibility of revival, a § 1983 claim could not be pursued based on allegations of unlawful circumstances surrounding the criminal prosecution. See also Brooks v. City of Winston-Salem, N.C., 85 F.3d 178 (4th Cir. 1996). Under the favorable termination rule, the charges must be terminated "for reasons indicative of the innocence;" courts have held that an unexplained nolle prosequi or disposal of charges for reasons other than innocence do not satisfy the Heck "favorable termination" requirement. Restatement(Second ) of Torts § 660 (1977); see also Tucker v. Duncan, 409 F.2d 963, 965 (4th Cir. 1974); Wilkins v. DeReyes, 528 F.3d 790, 802-03 (10th Cir. 2008); Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir.1997); Posr v. Court Officer Shield # 207, 180 F.3d 409, 418 (2nd Cir. 1999); Jackson v. Gable, 2006 WL 1487047, at *6 (D.S.C. May 25, 2006); Nicholas v. Wal-Mart Stores, Inc., 33 Fed. Appx. 61, 64-65 (D.S.C. 2002). While Wallace held that Heck no longer bars claims of false arrest by pretrial detainees, Heck is still applicable to claims of malicious prosecution. Wallace, 549 U.S. at 387 n.1, 390 n.2. Plaintiff has not shown that the charge connected to his allegations has been favorably terminated in accordance with the above law. As such, his claims for malicious prosecution must be dismissed.
Moreover, Plaintiff's allegations as to discrimination and Title VII fail to state a claim upon which relief could be granted. Title VII makes it "an unlawful employment practice for an employer (1) to ... discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). Plaintiff has not alleged an employment relationship with Defendants.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process. See Brown v. Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B).
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge March 29, 2017
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).