Opinion
C/A No. 2:19-3180-RMG-BM
02-25-2020
Michael Brown, a/k/a Michael Anthony Brown, Plaintiff, v. City of North Charleston Police Department, Defendant.
REPORT AND RECOMMENDATION
This is a civil action filed by the Plaintiff, Michael Brown, also known as Michael Anthony Brown, pro se, and is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915 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); Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," 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 v. Hernandez, 504 U.S. at 31. Hence, 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.
Further, while this Court is also required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), 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 court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Discussion
Plaintiff alleges that he was falsely arrested for trespassing on September 23, 2018, and that the charges were dismissed on August 10, 2019. He asserts that when he went to court an unidentified "staff member" stated to the judge that he or she (the staff member) lied about the charges. Complaint, ECF No. 1 at 3, 5. Plaintiff has filed a separate case against the Charleston County Detention Center (Case Number 19-3194-RMG-BM) alleging false imprisonment, in which he states that a staff member that represented a business made the alleged false allegation. See Brown v. Al Cannon Detention Center, No. 2:19-3194 (D.S.C.). Plaintiff requests monetary damages. ECF No. 1 at 5. Plaintiff has attached an order for the destruction of his arrest records that states that an October 23, 2018 charge of trespassing/entering premises after warning or refusing to leave on request was ended by dismissal, nolle prossed, or that he was found not guilty on August 6, 2019, and that he was entitled to have the offense expunged. ECF No. 1-1 at 1.
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970).
It appears that Plaintiff may have used the wrong date in his Complaint as to when he was allegedly arrested (as noted above, Plaintiff states he was falsely arrested on September 23, 2018).
Plaintiff has only named the City of North Charleston Police Department as a party Defendant. However, the Police Department is entitled to summary dismissal as a party Defendant because this entity is not a "person" subject to suit under § 1983. Buildings and correctional institutions, as well as sheriff's departments and police departments, are not generally considered legal entities subject to suit in § 1983 actions. See Post v. City of Fort Lauderdale, 750 F. Supp. 1131 (S.D.Fla. 1990)[dismissing city police department as improper defendant in § 1983 action because was not "person" under the statute]; Shelby v. City of Atlanta, 578 F. Supp. 1368, 1370 (N.D.Ga. 1984)[dismissing police department as party defendant because it was merely vehicle through which city government fulfills policing functions]; see also Harden v. Green, 27 F. App'x 173, 178 (4th Cir. 2001) [finding that the medical department of a prison is not a person pursuant to § 1983]; Nelson v. Lexington Cnty. Det. Ctr., C/A No. 8:10-2988, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011)[finding that a building, detention center, is not amenable to suit under § 1983 and that Food Service Supervisors was a group of people not subject to suit]. The view that a municipal police department is not a legal entity subject to liability under § 1983 is in accord with the majority of federal courts that have addressed this issue. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Petaway v. City of New Haven Police Dep't, 541 F. Supp.2d 504, 510 (D.Conn. 2008) ["[A] municipal police department is not subject to suit under section 1983 because it is not an independent legal entity."]; Terrell v. City of Harrisburg Police Dep't, 549 F. Supp.2d 671, 686 (M.D.Pa. 2008)["It is well-settled that police departments operated by municipalities are not 'persons' amenable to suit under § 1983."]; Gore v. Conway Police Dep't, No. 9:08-1806, 2008 WL 2566985 (D.S.C. June 26, 2008); Lyons v. Edgefield County Police, No. 8:05-2503, 2006 WL 3827501, at *3 (D.S.C. Dec. 28, 2006) [police department not a separate suable entity amenable to suit].
In order to state a cause of action under § 1983, a plaintiff must allege that: (1) "some person has deprived him of a federal right," and (2) "the person who has deprived him of that right acted under color of state or [federal] law." Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167 (1961).
Moreover, even if Plaintiff had amended his Complaint (see Recommendation, p. 6, infra) to name as a defendant the individual police officer who allegedly falsely arrested him, his case would still be subject to summary dismissal where he was arrested pursuant to a facially valid warrant. "[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) (citing Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996)); see also Baker v. McCollan, 443 U.S. 137, 144-45 (1979) [finding the plaintiff's false imprisonment claim failed because he was arrested pursuant to a facially valid warrant, which satisfied probable cause]. The fact (assuming it is a fact) that an employee of a business may have filed a false report that Plaintiff had committed an offense, which was relied on by a police officer to effect Plaintiff's arrest, does not give rise to an action against the police officer. "Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost." Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000) (quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986)).
Finally, to the extent that the trespassing charge was nol prossed or was disposed of for reasons not consistent with Plaintiff's innocence, Plaintiff's claims for monetary damages would also be subject to summary dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487. As this Court and others have held, a simple, unexplained nolle prosequi or "dismissal" or "disposal" of pending state charges that results in the dismissal of the charges for reasons other than the criminal defendant's innocence does not satisfy the Heck "favorable termination" requirement. See Wilkins v. DeReyes, 528 F.3d 790, 802-03 (10th Cir. 2008); Washington v. Summerville, 127 F.3d 552, 558-559 (7th Cir. 1997); Jackson v. Gable, C/A No. 0:05-2591-HFF-BM, 2006 WL 1487047, at *6 (D.S.C May 25, 2006)["Even where criminal charges are nolle prossed, and therefore no conviction was obtained, Heck still bars a claim for damages unless the Plaintiff establishes that the nolle prosequi was entered for reasons consistent with his innocence."]; see also Nicholas v. Wal-Mart Stores, Inc., 33 F. App'x 61, 64-65 (D.S.C. 2002)[state-law-based malicious prosecution; favorable termination requirement]. Under South Carolina law, a "nolle prosequi" entry indicates that the prosecutor has exercised the discretion not to prosecute a case and is not an adjudication on the merits. Mackey v. State of South Carolina, 357 S.C. 666 (S.C. 2004)[explaining that "when a solicitor enters a nolle prosequi, charges are extinguished"]; In re Brown, 294 S.C. 235 (S.C. 1988)["It has long been the law in South Carolina that the decision to nolle prosequi is a matter within the solicitor's discretion."]. Therefore, even if this case was allowed otherwise to proceed, Plaintiff would need to establish a "favorable termination" of his charges under Heck before he could proceed with his claim.
Recommendation
Although Plaintiff was previously given notice (ECF No. 10) that some of the above pleading deficiencies could possibly be corrected by factual amendment, see, e.g., Goode v. Central Va. Legal Aid Soc'y, 807 F.3d 619, 623-24 (4th Cir. 2015); Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4th Cir. April 28, 2017) [Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal], and was given an opportunity to file an amended complaint (and provided with a blank complaint form), he failed to do so. Therefore, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process.
Plaintiff's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge February 25, 2020
Charleston, South Carolina
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).