Opinion
C. A. 3:22-2018-TLW-SVH
08-19-2022
Marie Assa'ad-Faltas, Plaintiff, v. Washava Moye, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Marie Assa'ad-Faltas (“Plaintiff”), proceeding pro se and in forma pauperis, filed a civil rights action pursuant to 42 U.S.C. § 1983. This matter comes before the court on Plaintiff's motion for a temporary restraining order (“TRO”), ECF No. 4, requesting the court enjoin Washava Moye (“Defendant”), the interim director of Alvin S. Glenn Detention Center (“ASGDC”), from requiring her to serve a 10-day sentence within the facility for contempt of court.
All pretrial proceedings were referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.). Because the motion requests injunctive relief, it is dispositive, and this Report and Recommendation is entered for the district judge's consideration.
I. Factual Background
In Appellate Case No. 2021-000815, the South Carolina Supreme Court (“SCSC”) held Plaintiff in contempt of court for violating its September 27, 2017 order prohibiting her from contacting any judge, law clerk, clerk of court, or any other officer or employee of the Unified Judicial System. [ECF No. 1-1]. On June 10, 2022, the SCSC issued an order finding Plaintiff in contempt and sentencing her to six months in prison, suspended upon the service of 10 days at ASGDC. Id. Plaintiff subsequently filed documents with the SCSC that the court construed as a petition for rehearing, which it denied on June 21, 2022. Id. at 12. Plaintiff filed the instant motion on Friday, June 24, 2022, seeking injunctive relief from the order directing her to report to ASGDC on Monday, June 27, 2022, at 10:00 AM to serve the 10-day sentence. [ECF No. 1 at 1].
Plaintiff did not challenge the SCSC's order, but, instead, requested this court grant injunctive relief and order Defendant to allow her to serve her sentence in home detention, in an outside medical facility, or in an isolated unit with no contact with male inmates. Id. at 1. She also requested the court enjoin Defendant from recording or monitoring her calls during the period of incarceration. Id. She asked the court to stay her sentence for 10 days. Id. at 2. She also argued that time she had served on prior charges “from all of which she has been later fully exonerated” should be applied to offset her period of incarceration. Id. at 1.
II. Discussion
A. Standard of Review
A party seeking a preliminary injunction or TRO must establish the following four elements: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).The party must make clear showings as to the first and second elements. Winter, 555 U.S. at 19-22; Real Truth, 575 F.3d at 345-47. The court may only consider whether the balance of equities tips in favor of the party seeking injunctive relief after she has satisfied the first two elements. See Real Truth, 575 F.3d at 346-47.Finally, the court must be particularly mindful of the public consequences of employing the extraordinary relief of injunction. Real Truth, 575 F.3d at 347 (quoting Winter, 555 U.S. at 19-23).
Although the original decision in Real Truth was vacated by the Supreme Court for further consideration in light of the decision in Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010), the Fourth Circuit reissued its opinion on Parts I and II of its earlier opinion in the case. 575 F.3d at 345-47, stating the facts and articulating the standard for the issuance of preliminary injunctions, before remanding it to the district court for consideration in light of Citizens United. See Real Truth, 607 F.3d 355 (4th Cir. 2010).
The court in Real Truth relied on Winter in expressly rejecting and overruling Blackwelder's sliding scale approach that formerly allowed a party to obtain an injunction with a strong showing of a probability of success even if she demonstrated only a possibility of irreparable harm. Real Truth, 575 F.3d at 347; Winter, 555 U.S. at 20-22.
B. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. To state a plausible claim for relief under § 1983, an aggrieved party must sufficiently allege she was injured by “the deprivation of any [of her] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). To state a claim on which relief may be granted, Plaintiff “must have plausibly alleged in his complaint that his constitutional rights were violated.” Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013). However, “[w]hen the asserted injury has not yet occurred but rather is prospective, the Plaintiff has standing so long as the injury is real, immediate, and direct.” Gautier v. Jones, C/A No. 8-445-C, 2008 WL 4131501, at *2 (W.D. Okl. Aug. 29, 2008) (citing Davis v. Federal Election Comm'n, 554 U.S. 724 (2008)).
Construed liberally, Plaintiff appears to challenge the anticipated conditions of her confinement as cruel and unusual punishment in violation of the Eighth Amendment and to argue that equal protection under the laws pursuant to the Fourteenth Amendment requires she be provided weekend service or home detention and that she be credited for prior periods of incarceration from which she was “later fully exonerated.” [ECF No. 4 at 1]. Because the facts as represented in the complaint, motion, and attachment to Plaintiff's motion demonstrate she was likely to be subjected to some of the conditions of incarceration she challenges, the undersigned assumes arguendo that she has alleged sufficient facts to invoke the court's jurisdiction pursuant to § 1983.
Nevertheless, Plaintiff is unable to meet the first element for a TRO because she cannot demonstrate a clear likelihood of success on the merits. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. CONST. amend. VIII. “It is ‘cruel and unusual punishment to hold convicted criminals in unsafe conditions.'” Helling v. McKinney, 509 U.S. 25 (1993) (quoting Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982)). However, Plaintiff's allegations do not indicate she would be subjected to unsafe conditions during her 10-day incarceration. To the extent she alleges the conditions at ASGDC are unsafe because she would be subject to incidental encounters with male inmates who may have access to shoelaces or crutches, her claim is too attenuated. Plaintiff bases this claim on her observations during a period of incarceration more than 11 years ago, and alleges the male inmates had access to possible means to endanger her. She makes the conclusory statement that conditions at ASGDC have not changed over that 11-year period, but cites nothing to support her statement.
To the extent Plaintiff argues incarceration for nonviolent offenders such as herself constitutes cruel and unusual punishment or violates her right to equal protection under the laws, the Americans with Disabilities Act, or South Carolina law, she has cited no specific provision to support her argument, and the undersigned finds no authority to support such a position. The Constitution and federal law do not guarantee freedom from all punishment, but only cruel and usual punishment, and a 10-day period of incarceration for contempt of court does not rise to the level of cruel and usual punishment.
The Fourteenth Amendment provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. “To be successful on an equal protection claim, the plaintiff must demonstrate ‘that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.'” Benites v. Phillips, C/A No. 2:08-117, 2009 WL 595644, at *6 (N.D.W.V. Mar. 6, 2009) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). Plaintiff does not prevail on this claim because she has presented no evidence that incarceration within a detention center would serve as treatment inconsistent with other similarly-situated individuals convicted of contempt.
Plaintiff's argument that the right to equal protection mandates she be credited for time served for other offenses for which she was later exonerated also fails. The Fourth Circuit has consistently noted “a state defendant is not entitled to credit time served on a voided conviction against a new sentence for a new crime.” United States v. Jackson, 952 F.3d 492, 499 (4th Cir. 2020) (citing Miller v. Cox, 443 F.3d 1019, 1021 (4th Cir. 1971)). In Miller, 443 F.3d at 1021, the court explained “the availability of credits against sentences for future crimes would provide a sense of immunity and an incentive to engage in criminal conduct.” Thus, Plaintiff has no federally-guaranteed right to apply time from her prior periods of incarceration toward her sentence for contempt.
To support her request that the court enjoin Defendant from monitoring or recording her calls during her period of detention, Plaintiff refers the court to her motion to intervene in Murdaugh v. Kitchens, C/A No. 8:22-608-CMC (D.S.C.), ECF No. 24. Plaintiff fails to allege that a constitutional violation will occur if the court does not enjoin Defendant from monitoring or recording her calls, and the undersigned's review of her motion to intervene in Murdaugh reveals that it contains no plausible argument as to violation of a constitutional right.
The court takes judicial notice of Plaintiff's filing in Murdaugh. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”) (citation omitted).
Plaintiff presents a speculative argument that she is “at risk of death” in the absence of preliminary relief due to her age of 69 and “frail health.” [ECF No. 4 at 2]. She presents no evidence for the court to examine to determine if her health is as “frail” as she alleges, and her age alone is not sufficient to indicate an increased risk that she would suffer irreparable harm if she were incarcerated for 10 days. See id. Thus, the undersigned cannot conclude that Plaintiff is likely to suffer irreparable harm if injunctive relief is not granted.
Because Plaintiff has not met either of the first two requirements for injunctive relief, the balance of equities does not tip in her favor. Finally, the undersigned cannot conclude that an injunction is in the public interest, given the burden Plaintiff has imposed on the judicial system, described as follows in the attachment to her complaint:
Respondent is a prolific frivolous filer. See generally City of Columbia v. Assa'ad-Faltas, 420 S.C. 28, 31, 800 S.E.2d 782, 783 (2017) (detailing Respondent's lengthy history of abusive filing). However, to limit the description of Respondent's actions to merely “prolific frivolous filings” would be a gross understatement. For over two decades, this Court and various lower courts throughout our state have been besieged by Respondent and her extensive, burdensome, and vexatious litigation and filings. Since 1997, Respondent has been involved in sixty-four matters before this Court, twenty-four matters before the court of appeals, forty-three matters before the Richland County Circuit Court, and thirtyseven matters before the Richland County Magistrates Court, the overwhelming majority of which were found to be without merit or frivolous. In each of these cases, Respondent used the litigation as a license to repeatedly contact court officials and personnel in an unrelenting, abusive, and inappropriate manner.
Respondent's use of excessive litigation as a license to engage in a scorched-earth approach to contacting judicial branch employees is not limited to the courthouse setting. As this Court noted in 2017, Respondent has pursued and approached individual members of this Court and other Court personnel in non-public
areas of the Courthouse, the Courthouse parking lot, at a hotel in Columbia, and during a church service. Likewise, during a January 2011 oral argument before this Court in a matter to which Respondent was not a party, Respondent stood and attempted to address the Court to offer her opinion on the outcome of the case. Id. at 34, 800 S.E.2d at 784-85. Stunningly, following the March 22 contempt hearing, Respondent filed a document opining about the merits of a case to which she is not a party.[ECF No. 1-1 at 2].
Therefore, the undersigned concludes Plaintiff has failed to satisfy the requirements for injunctive relief.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's motion for a TRO.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).