Opinion
C. A. 8:23-3571-RBH-TER
08-07-2023
George Cleveland, III, Plaintiff, v. Codi J. Buchanan, Krystal Garner, Jena Marcengil, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a pro se litigant, proceeding 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.
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 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). 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 alleges this is a § 1983 for alleged Fourth and Fourteenth Amendment rights violations. Plaintiff sues DSS employees involved in multiple family court actions in Anderson County and a lab employee contracted by DSS. (ECF No. 1); January 2023, No. 2023-DR-04-0056; March 2023, No. 2023-DR-04-00273,; March 2023, No. 2023-DR-04-444.
As history, Plaintiff alleges his child born in October 2022, was placed in foster care in January 2023 after meconium tested positive for THC. (ECF No. 1 at 2). Plaintiff alleges there was a hearing on January 26, 2023 and an order of temporary custody to DSS. (ECF No. 1 at 7). Plaintiff alleges on the same day DSS took custody, Plaintiff's child was taken to her pediatrician by DSS employee Buchanan and then to a lab where hair was cut from both sides of her head for a drug test. On January 30, 2023, another state court hearing was held and custody was returned to the child's mother. (ECF No. 1 at 9). In February 2023, the result of the hair test was positive for meth. This positive result resulted in the initiation of an abuse and neglect case against Plaintiff in March 2023. (ECF No. 1 at 2). In May 2023, there was a trial on the merits. (ECF No. 1 at 13). The hair factual allegations and results were presented as evidence at the trial. (ECF No. 1 at 13). The allegations end here; it is unclear the result of the May trial as to Plaintiff's child. Later, there is an allegation the hair was used in the “subsequent finding of physical abuse and neglect by family court judge Karen Roper on May 4, 2023.” Plaintiff alleges DSS was ordered to place Plaintiff's name on the central registry. (ECF No. 1 at 17).
It is unclear what the details of the proceeding in family court entailed and whether Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) may be applicable here.
Plaintiff alleges count one is for Fourth and Fourteenth Amendment violations due to the “unreasonable search and seizure of [Plaintiff's child's] hair,” which was for drug testing and came back positive for meth. (ECF No. 1 at 14). Plaintiff alleges count four is for “false imprisonment” and “violation of the Fourth and Fourteenth Amendment” when DSS employees drove Plaintiff's child to a lab for a hair strand drug test. (ECF No. 1 at 21). Plaintiff alleges his child's hair was invasively removed. For these two counts, Plaintiff requests compensatory and punitive damages for himself. Plaintiff has no standing to bring claims on behalf of others. Standing consists of three elements: Plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Plaintiff's child's alleged hair injuries are not Plaintiff's injuries. When determining whether a plaintiff has standing to sue, a district court must focus on the status of the party who has filed the complaint. Flast v. Cohen, 392 U.S. 83, 99 (1968). “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim on the legal rights or interests of third parties.” Skelton v. E.P.A., No. 3:09-cv-1429-MBS, 2009 WL 2191981, at *3 (D.S.C. July 16, 2009)(internal citations and quotations omitted); see also Maryland Shall Issue, Inc. v. Hogan, 971 F.3d 199, 214 (4th Cir. 2020).
The child is not a Plaintiff or a co-Plaintiff here, even if the child were, Plaintiff cannot represent his child's interests in pursuit of claims as Plaintiff is proceeding pro se and the child would need to be represented by an attorney. There is no right to litigate pro se for others. Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005). Any amendment of the complaint to add the child as a Plaintiff would be futile as the remaining discussion below shows.
Plaintiff alleges as count two, “due process violation.” Plaintiff alleges his parental rights were abrogated by the seizure of his child's hair, which was eventually used to initiate an abuse and neglect case against Plaintiff which resulted in a court finding of such in May 2023. (ECF No. 1 at 16-17). Plaintiff's own allegations show he had several hearings and a merits trial on the ultimate issues. (ECF No. 1). Plaintiff's legal conclusion in count two that a parent is required to be provided due process prior to having rights to care, custody, and control of children deprived is not entirely accurate in the matters of testing of children. By reasonable interpretation of state statute, testing a child's hair is authorized without the consent of the child's parents. See S.C. Code Ann. § 63-7-380.
As to Plaintiff's allegations as to count three, “tampering with evidence” and “due process violation,” Plaintiff's allegations are directly related to what happened in state family court proceedings. Plaintiff alleges he was not provided with all the evidence of a photo. Even where a Plaintiff does not seek to have decisions of the state court overruled and seeks monetary damages for infringement of rights in state court proceedings, the doctrine of Rooker-Feldman still applies because the relief requested would require a declaration that the state court orders were invalid or improper. Thomas v. S.C. Dep't of Soc. Servs., No. 6:18-CV-3140-TMC, 2019 WL 1416881, at *2 (D.S.C. Mar. 29, 2019); S.C. Dep't of Soc. Servs. v. Obregon-Mejia, No. 8:17-cv-2659-TMC-JDA, 2018 WL 627892, at *8 (D.S.C. Jan. 10, 2018), report and recommendation adopted, 2018 WL 625007 (D.S.C. Jan. 30, 2018)(collecting cases where claims were couched as due process violations but substance of issues were challenging actions taken by DSS in abuse action). As the Fourth Circuit has explained, “if the state-court loser seeks redress in the federal district court for the injury caused by the state-court decision, his federal claim is, by definition, ‘inextricably intertwined' with the state-court decision, and is therefore outside the jurisdiction of the federal district court.” Davani v. Va. Dep't of Transp., 434 F.3d 712, 719 (4th Cir. 2006). Where a due process claim was a mere pretext for challenges to the validity of proceedings in state court, Rooker-Feldman barred the Complaint. Stratton v. Mecklenburg Cnty. Dep't of Soc. Servs., 521 Fed.Appx. 278, 291 (4th Cir. 2013).
While the Rooker Feldman doctrine is jurisdictional and dismissal of this action is without prejudice, the doctrine is only applicable here to count three of Plaintiff's Complaint and the court addresses the other claims on the merits. Smalley v. Shapiro & Burson, LLP, 526 Fed.Appx. 231, 235 (4th Cir. 2013)(“This Court has consistently treated the Rooker-Feldman doctrine as jurisdictional”).
Further, all four claims alleged by Plaintiff are against DSS employees in part. State statute provides immunity for DSS employees from civil or criminal liability performing child protective or child welfare related functions. S.C. Code Ann. § 63-7-400. Testing a child for drugs appears to fall within those functions. See S.C. Code Ann. § 63-7-380. Also, the lab employee defendant may also be immune statutorily as state law provides a person who participates in an investigation is immune from civil and criminal liability. See S.C. Code Ann. § 63-7-390.
Plaintiff has failed to state a claim upon which relief can be granted.
To the extent that Plaintiff's complaint may be read to include claims pursuant to state law, the undersigned recommends that the court decline to exercise supplemental jurisdiction over any such claims pursuant to 28 U.S.C. § 1367(c).
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process.
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).