Opinion
C/A No. 7:20-825-RMG-TER
05-08-2020
Supreme Raheem Ackbar, #182864, a/k/a Ronald Gary, #275886, Plaintiff, v. Charles W. Jones, James F. Ashmore, Chris Miller, Lorin Williams, Alan Wilson, Trey Gowdy, Chuck Wright, Derrick B. Bulsa, J. Derham Cole, Susan White, Roger L. Couch, Alphonso Simon, Jr. Defendants.
Report and Recommendation
This is a civil action filed by a state prisoner proceeding pro se and in forma pauperis. 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 pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 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); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This 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 frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
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 may be 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 was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and given an opportunity to file an Amended Complaint. (ECF No. 7). Plaintiff filed an Amended Complaint; it is still deficient and subject to summary dismissal. (ECF No. 14).
Plaintiff's request for relief is monetary damages and "permanent injunctive relief, medical, dental, and mental health care by outside doctors, release from false imprisonment, attorney fees, implementation of the God Center Culture Islam way of life inside SCDC, return Plaintiff's God Center Culture Islam property and vital legal property." (ECF No. 14 at 9).
Plaintiff alleges he was seized illegally in September 2009. (ECF No. 14 at 16). Plaintiff alleges there was a defective warrant for his arrest and Miller presented false testimony. (ECF No. 14 at 16). Plaintiff alleges Ashmore acted recklessly in issuing a defective warrant knowing Williams presented false testimony. Plaintiff alleges Wilson knew Bulsa failed to state sufficient facts at grand jury. (ECF No. 14 at 16). Plaintiff alleges Gowdy permitted Bulsa to give false testimony in violation of due process. Plaintiff alleges Wright obtained defective warrants through false testimony. (ECF No. 14 at 17). Plaintiff alleges Bulsa concealed evidence and acted with malice in maintaining a prosecution. Plaintiff alleges Cole allowed the jury to convict Plaintiff on evidence not in the indictment. (ECF No. 14 at 17). Plaintiff alleges White maliciously claimed Plaintiff failed to meet his burden of proof. Plaintiff alleges Couch failed to take notice that the indictment did not allege a conspiracy. Plaintiff alleges Simon failed to offer evidence against Plaintiff's claim of illegal detainment. Plaintiff alleges he was falsely arrested and maliciously prosecuted. (ECF No. 14 at 18). Plaintiff alleges as a result of his "false imprisonment" that he has lost time with his family, been subject to prison conditions, had medical issues, and experienced confiscation of property in prison. (ECF No. 14 at 19). Plaintiff essentially alleges later in his Amended Complaint that all those who were involved in his arrest and prosecution from 2009 to 2011 are responsible for everything that later happened to him while incarcerated, including alleged retaliation by SCDC officials not named as defendants, but who are defendants in another action, No. 20-813; (ECF No. 14).
Plaintiff's claims against several defendants who are members of the judiciary are based on official participation and resulting judicial rulings made in relation to Plaintiff's cases. Such claims are barred by the doctrine of absolute judicial immunity. Judicial immunity is a threshold question which requires summary dismissal. Siegert v. Gilley, 500 U.S. 226, 232 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The doctrine of absolute immunity for acts taken by a judge in connection with his or her judicial authority and responsibility is well established and widely recognized. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judges are immune from civil suit for actions taken in their judicial capacity, unless "taken in the complete absence of all jurisdiction"); Stump v. Sparkman, 435 U.S. 349, 359 (1978) ("A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors."); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir.1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir.1985) ("It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions."). Such defendants, Jones, Ashmore, Cole, and Couch are subject to summary dismissal.
Plaintiff sues solicitors, the attorney general, and deputy attorney generals involved in prosecuting Plaintiff. 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). Such defendants, Wilson, Gowdy, Bulsa, White, and Simon are subject to summary dismissal.
To the extent under a liberal construction Plaintiff attempts to allege a false arrest claim, 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 filings, he was arrested pursuant to a facially valid warrant, and any false arrest claims would be subject to summary dismissal. Moreover, the statute of limitations for false arrest claims are not tolled during the pendency of the criminal proceedings. Wallace v. Kato, 549 U.S. 384, 397 (2007). "We hold that the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process." Id. Plaintiff alleges his arrest was in 2009, well beyond the statute of limitations. This claim is subject to summary dismissal.
To the extent under a liberal construction Plaintiff attempts to allege a malicious prosecution claim, 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, 499 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 murder charge connected to his allegations has been favorably terminated in accordance with the above law. To the extent Plaintiff's armed robbery charge was dismissed in 2011, the statute of limitations for a malicious prosecution claim accrues when the proceedings against Plaintiff were terminated in his favor. Brannon v. Blanton, No. CV 9:15-2434-CMC, 2016 WL 4232886, at *3 (D.S.C. Aug. 11, 2016). Plaintiff is well beyond the statute of limitations here. As such, his claims for malicious prosecution on both the murder and armed robbery charges are subject to summary dismissal.
Plaintiff alleges generally his due process and equal protection rights were violated. Plaintiff's alleged due process claims are in essence his false arrest and malicious prosecution claims, which are subject to summary dismissal. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To show that his equal protection right was violated, Plaintiff must demonstrate that he was treated differently from similarly situated persons and the discrimination was intentional or purposeful. Williams v. Hansen, 326 F.3d 569 (4th Cir.2003). Plaintiff's allegations as filed fail to state a claim of violation of due process or equal protection.
To the extent Plaintiff alleges all those involved in his prosecution are responsible for all the things that have occurred to him in prison over several years, Plaintiff fails to allege a causal connection. 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). 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).
Plaintiff's request for relief also states "release from false imprisonment." Section 1983 is not the proper vehicle for requesting release from prison; Plaintiff may file a habeas action.
Moreover, Plaintiff's request for relief contains reference to"return of Plaintiff's God Center Culture Islam property", and "outside mental and medical health care." However, there are no factual allegations in the complaint regarding such.
Plaintiff has failed to state a claim upon which relief could be granted. Plaintiff's action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend has failed to cure deficiencies in his amended complaint.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge May 8, 2020
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).