Opinion
C/A No. 8:20-cv-03284-HMH-KFM
11-09-2020
Terry L. Dunn-Fischer, Plaintiff, v. Greg W. Reed, Oconee County, Oconee County Sheriff's Department, Defendants.
REPORT OF MAGISTRATE JUDGE
The plaintiff, proceeding pro se and in forma pauperis, filed this action alleging violations of her constitutional rights by the defendants (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on September 15, 2020 (doc. 1). By order filed October 2, 2020, the plaintiff was given a specific time frame in which to bring her case into proper form for judicial screening (doc. 8). The plaintiff substantially complied with the Court's order, bringing the case into proper form. Nevertheless, upon review, the plaintiff's complaint is subject to summary dismissal.
ALLEGATIONS
The plaintiff's complaint spans twenty-five pages, with approximately one hundred and fifty pages of "supporting documents" (docs. 1; 1-1). The complaint involves the custody and care of the plaintiff's grandson ("CRB") while her daughter Annalyse (CRB's mother) was in the hospital (docs. 1; 1-1). The supporting documents attached to the complaint include various orders and filings from the Oconee County Sheriff's Department ("OCSD") as well as the Oconee County Family Court (doc. 1-1). Here, the plaintiff alleges jurisdiction based upon various federal statutes, including 42 U.S.C. § 1983 (doc. 1 at 12).
In the body of the complaint, the plaintiff alleges that shortly after CRB's birth, Annalyse was placed into the intensive care unit ("ICU") because of sepsis (id. at 1, 15-17). When the plaintiff learned that Annalyse was in the ICU on November 29, 2019, she contacted the OCSD to obtain the phone number for the individual from the Oconee Department of Social Services ("DSS") who was on-call to obtain CRB from Jordan (the individual who Annalyse left CRB with), but the OCSD would not provide that information to the plaintiff and indicated that no case worker was available (id. at 2, 17). At some point after the plaintiff contacted the OCSD, officers performed a wellness check of CRB, but refused to remove CRB from Jordan's care (id. at 2-3). The plaintiff contends that the OCSD also refused to refer the matter to DSS a second time or to provide her with access to the on-call DSS worker (id.). Because CRB was left in Jordan's custody, the plaintiff alleges he was exposed to MRSA and had to be hospitalized (id. at 1-2, 16-17). During this same time, even though Annalyse remained in ICU, Deputy Heaton with the OCSD indicated that he spoke with Annalyse and that Annalyse wanted CRB to remain with Jordan (id. at 3). When the plaintiff was able to contact DSS, Ms. Rampy refused to open a case at DSS regarding CRB (id. at 3-4).
The plaintiff attempted to file a complaint regarding actions by officers with OCSD, but she was told there was no oversight division and Sheriff Mike Crenshaw did not return her phone calls (id. at 4). Calls to the Governor of South Carolina likewise went unanswered, so the plaintiff reached out to the sheriff's department in Rabun County, Georgia to have CRB removed from Jordan's care (id. at 4). A second wellness check of CRB was completed, but the plaintiff alleges that the OCSD reports regarding the wellness checks were neither comprehensive nor time-stamped (id. at 4).
The plaintiff contends that after Sheriff Crenshaw failed to return her phone call, Lt. Price with the OCSD returned her call and got angry with her when she "quoted the law" to him and refused to recognize the plaintiff as Annalyse's power of attorney ("POA") under South Carolina law because Annalyse was unmarried and incapacitated (id. at 5-6). The plaintiff further contends that Lt. Price knew that Annalyse was on a ventilator in violation of the Health Insurance Portability and Accountability Act ("HIPAA"), and that Lt. Price later failed to return the plaintiff's call (id. at 5). Instead, Capt. Reed from the OCSD called the plaintiff and attempted to coerce her into agreeing to CRB staying with Jordan (id. at 6). Capt. Reed also blamed the plaintiff's failure to consent to Jordan's custody of CRB as preventing CRB from receiving medical care (id.). On December 4, 2019, the plaintiff spoke with Capt. Reed a second time and he refused to repeat information she wanted and hung up on her when she indicated that she was recording the phone call (id. at 7-8). Despite this conversation, the plaintiff contends that a fraudulent medical health care release was used by Jordan to obtain medical care for CRB (id. at 7).
Due to OCSD's failure to remove CRB from Jordan's custody, the plaintiff contends she was forced to file a private action in the Oconee County Family Court to prevent the continued kidnapping of CRB by Jordan (id. at 2, 8-9). See Dunn-Fischer v. Dunn-Fisher, et al., C/A No. 2019-DR-37-00762 (Oconee Cnty. Fam. Ct.). The plaintiff's emergency request for custody was denied and CRB was placed into DSS custody by Judge Ballenger with the Oconee County Family Court, but the plaintiff contends that her request was denied due to an inappropriate personal relationship between Judge Ballenger and Capt. Reed (id. at 9). Capt. Reed was later allowed to manipulate the proceedings against the plaintiff during a probable cause hearing before Judge Mindy Zimmerman on December 9, 2019 (id. at 9-11). Annalyse tried to participate in the December 9, 2019, hearing from the hospital, but the Oconee County Family Court would not allow Annalyse to attend by phone (id. at 11). The Oconee County Family Court case was later wrongfully closed despite the failure of DSS to complete a paternity test of Cainnan, CRB's presumed father (id.).
The plaintiff contends that OCSD's failure to investigate her complaints violated her Fifth and Fourteenth Amendment due process and equal protection rights (id. at 18-20). The plaintiff also asserts that the defendants acted grossly negligently and failed to properly train and supervise OCSD officers (id. at 18, 20-23). The plaintiff also contends that the defendants interfered with her rights as Annalyse's POA (id. at 2, 16-17). For relief, the plaintiff seeks money damages (id. at 24).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied 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). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which "'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) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege 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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
"The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, "and to dismiss the action if no such ground appears." Bulldog Trucking, 147 F.3d at 352; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
DISCUSSION
The plaintiff filed this action seeking damages for various constitutional violations by the defendants in matters involving the custody of CRB (doc. 1). However, the plaintiff's claims are subject to summary dismissal.
As an initial matter, to the extent the plaintiff attempts to bring claims on behalf of Annalyse or CRB, she cannot file or maintain a lawsuit on behalf of others. See Myers v. Loudon Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) (noting that although an individual has the right to represent himself/herself by statute—28 U.S.C. § 1654—that right does not "create a coordinate right to litigate for others"). As such, to the extent claims are asserted by the plaintiff on behalf of Annalyse or CRB, such claims should be dismissed.
Domestic Relations Exception
Of note, given that the plaintiff seeks damages relating to a custody matter and that such issues are traditionally an area of state concern, the court must ensure it has jurisdiction to consider this matter. As recognized by the United States Supreme Court, certain "domestic relations" cases are excluded from federal district court jurisdiction. Ankenbrandt v. Richards, 504 U.S. 689, 694 (1992) (affirming a domestic relations exception to lower federal court jurisdiction that had been previously recognized). However, the Fourth Circuit has stated, albeit in unpublished non-precedential opinions, that the domestic relations exception is a limit on diversity jurisdiction, without application as a limitation on federal question jurisdiction. See e.g., Dickens v. Durham Cnty., 803 F. App'x 720-21 (4th Cir. 2020) (unpublished per curiam opinion). Here, although the plaintiff's complaint cites to all of the bases for jurisdiction, referencing 28 U.S.C. §§ 1331-67, the plaintiff's allegations appear to invoke federal question jurisdiction (and not the other grounds enumerated in those statutory sections); thus, it appears that the domestic relations exception does not clearly apply. The Complaint is barred by the Rooker-Feldman Doctrine
The plaintiff's claim that the defendants violated her rights - by refusing to provide her with emergency custody of her grandson and preventing her from having an unbiased trial/hearing in the Oconee County Family Court - is subject to summary dismissal because, under the Rooker-Feldman doctrine, this Court is without jurisdiction to review or set aside the proceedings conducted and rulings made in the Oconee County Family Court. Weathers v. Pou, No. 2:09-cv-270-JFA-RSC, 2009 WL 1139984, at *2 (D.S.C. Apr. 27, 2009). The Rooker-Feldman doctrine is jurisdictional and may be raised by the Court sua sponte. Am. Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003). "[T]he Rooker-Feldman doctrine applies . . . when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court's decision itself." Davani v. Va. Dep't of Transp., 434 F.3d 712, 713 (4th Cir. 2006). Here, the plaintiff asserts her claims with this Court because she is dissatisfied with the proceedings in the Oconee County Family Court and seeks, in essence, an order from this court invalidating the actions of the Oconee County Family Court. It is well-settled, however, that the Rooker-Feldman doctrine applies to bar the exercise of federal jurisdiction even when a challenge to state court decisions or rulings concerns federal constitutional issues; instead, only the United States Supreme Court may review those state-court decisions. See Feldman, 460 U.S. at 476-82 (a federal district court lacks authority to review final determinations of state or local courts because such review can be conducted only by the Supreme Court of the United States under 28 U.S.C. § 1257); Davani, 434 F.3d at 719 (explaining how the expansive interpretation of the Rooker-Feldman doctrine was limited by Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)); see also Dukes v. Stone, C.A. No. 3:08-cv-505-PMD-JRM, 2009 WL 398079, at *4 (D.S.C. Feb. 17, 2009) (explaining that only the United States Supreme Court is empowered with appellate authority to reverse or modify a state court judgment).
The Rooker-Feldman Doctrine gets its name from two cases decided by the United States Supreme Court finding that the district court lacks subject matter jurisdiction over cases brought by state-court losers complaining of injuries caused by state-court judgments where the district court is requested to review and reject those judgments. See D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923).
The doctrine applies even if the state court litigation has not reached a state's highest court. See 28 U.S.C. § 1738 (providing that a federal court must accord full faith and credit to a state court judgment); Robart Wood & Wire Prods. Corp. v. Namaco Indus., 797 F.2d 176, 178 (4th Cir. 1986). As such, the plaintiff's challenge to the defendants' actions in denying her emergency custody of her grandson and causing unfair Family Court proceedings are subject to summary dismissal for lack of subject matter jurisdiction because of the Rooker-Feldman doctrine. Nevertheless, out of an abundance of caution for the pro se plaintiff, the undersigned addresses her claims to the extent they are not barred by the Rooker-Feldman doctrine.
18 U.S.C. §§ 1503, 1513 Claims
The plaintiff's reference to 18 U.S.C. §§ 1503, 1513 does not create federal jurisdiction in this matter. The Supreme Court has made clear that "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979); Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) ("The Supreme Court historically has been loath to infer a private right of action from a 'bare criminal statute' because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group." (internal citation omitted)). Federal rights of action, like substantive federal law, "must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)). "To create a private right of action, Congress must speak[ ] with a clear voice and the statute must unambiguously express the intent to create not just a private right but also a private remedy." Clear Sky Car Wash LLC v. City of Chesapeake, 743 F.3d 438, 444 (4th Cir. 2014) (internal citation, quotation marks, and emphasis omitted). Where "Congress is silent or ambiguous, courts may not find a cause of action 'no matter how desirable that might be as a policy matter.'" Planned Parenthood S. At. v. Baker, 941 F.3d 687, 695 (4th Cir. 2019) (partially quoting Alexander, 532 U.S. at 286-87). This holds true for federal criminal statutes. See Doe, 225 F.3d at 448; Fed. Sav. & Loan Ins. Co. v. Reeves, 816 F.2d 130, 138 (4th Cir. 1987).
The sections of Title 18 cited by the plaintiff neither create a private right of action nor unambiguously provide the plaintiff with either a private right or remedy. Moreover, the plaintiff has no standing to pursue this matter criminally because private citizens lack a judicially cognizable interest in the prosecution or nonprosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Accordingly, because the plaintiff may not assert claims based upon alleged violations of federal criminal law, such claims are subject to summary dismissal.
42 U.S.C. § 1320 Claim
It also appears that the plaintiff alleges a cause of action under 42 U.S.C. § 1320, the Health Insurance Portability and Accountability Act ("HIPPA"). HIPAA governs the confidentiality of medical records and regulates under what circumstances "covered entities" may use or disclose an individuals protected health information. The regulations define "covered entities" as health plans, health care clearinghouses, or health care providers. See 45 C.F.R. § 160.103. Here, the defendants are not entities subject to the act; thus, allegations regarding violations of this statute cannot be asserted in this action. See Winfree v. S. Cent. Reg'l Jail, et al., C/A No. 2:16-cv-06332, 2018 WL 737429, at *3 n.1 (S.D. W. Va. Jan. 16, 2018), Report and Recommendation adopted by 2018 WL 736045 (S.D. W. Va. Feb. 6, 2018). However, even with "covered entities," there is no private right of action under HIPAA; instead, enforcement proceedings where civil or criminal penalties may be imposed can only be initiated by the Secretary of Health and Human Services (or authorized state authorities). Id. at *3 (citing Logan v. Dep't of Veterans Affs., 357 F. Supp. 2d 149, 155 (D.D.C. 2004); 42 U.S.C. §§ 1320d-d-8 and 300gg-22). As such, the plaintiff's HIPAA claim is also subject to summary dismissal.
42 U.S.C. § 1983 Claims
The plaintiff also alleges violations of her Fifth and Fourteenth Amendment due process and equal protection rights by the defendants (doc. 1 at 18-20). As an initial matter, to the extent the plaintiff is dissatisfied with the defendants' actions in connection with the proceedings in the Orangeburg County Family Court, the Rooker-Feldman doctrine bars such claims. Nevertheless, to the extent the plaintiff's allegations could fall outside of Rooker-Feldman, they are addressed below with respect to each defendant.
Oconee County & Oconee County Sheriff's Department
The plaintiff has named Oconee County and the OCSD as defendants in this action—although it is unclear what her allegations are against them. Nevertheless, Oconee County is entitled to Eleventh Amendment Immunity. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Alabama v. Pugh, 438 U.S. 781, 781-82 (1978); see also S.C. Code Ann. § 15-78-20(e) (noting that the State of South Carolina has not consented to suit in federal court); Quern v. Jordan, 440 U.S. 332, 342-43 (1979) (holding that congress has not abrogated the state's sovereign immunity in § 1983 actions).
Additionally, Oconee County and the OCSD are not persons subject to suit under § 1983. It is well settled that only "persons" may act under color of state law; thus, a defendant in a § 1983 action must qualify as a "person." As noted, these defendants are not persons; hence, they are not subject to suit under 42 U.S.C. § 1983. See Harden v. Green, 27 F. App'x 173, 178 (4th Cir. 2001); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that "neither a state nor its officials acting in their official capacities are 'persons' under § 1983."). Accordingly, the plaintiff's § 1983 claims against Oconee County and the OCSD are subject to summary dismissal.
Greg W. Reed
The plaintiff contends that Capt. Reed violated her rights when he failed to investigate her allegations regarding CRB's placement and by manipulating the Oconee County Family Court proceedings (doc. 1 at 18-20). To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process. See Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). First, the plaintiff has no legally protected interest in the investigation of any alleged offense. Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (holding members of the public do not have an enforceable right to have crimes investigated). Additionally, while the due process clause protects the fundamental rights of parents to make decisions regarding the care, custody, and control of their children, Troxel v. Granville, 530 U.S. 57, 66 (2000), that right does not transfer to grandparents, Vaughn v. Foltz, C/A No. 2:16-cv-61-FL, 2017 WL 4872484, at *5-6 (E.D.N.C. Oct. 27, 2017) (recognizing that there is no Fourth Circuit or Supreme Court "authority that recognizes a constitutionally protected liberty interest of a grandparent with regard to her grandchild" and declining to add such a right to "the protections of the due process clause"), aff'd 825 F. App'x 131 (4th Cir. 2020). As such, the plaintiff's due process claim against Capt. Reed is subject to dismissal.
To the extent the plaintiff's complaint can be construed as asserting an equal protection claim against Capt. Reed, such claim is also subject to summary dismissal. An equal protection claim requires demonstration that the plaintiff was "treated differently from others with whom [s]he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). After making such a showing, the court determines whether the disparity in treatment is justified under the appropriate level of scrutiny. Id. Here, however, the plaintiff has not plausibly alleged how she was treated differently than other similarly situated individuals and does not allege facts showing that the Capt. Reed's actions were the result of discrimination or exhibited a discriminatory purpose. Indeed, as noted above, the crux of the plaintiff's claim is that Capt. Reed refused to provide her with custody of CRB, a matter that has already been addressed and determined adversely to the plaintiff in the Oconee County Family Court (and a matter that this court lacks jurisdiction to evaluate). As such, the plaintiff's § 1983 claims against Capt. Reed are also subject to summary dismissal.
State Law Claims
To the extent the plaintiff references violations of South Carolina law or seeks relief based upon state law causes of action, the court should abstain from exercising jurisdiction over such claims. Such claims can be considered by this court through the exercise of "supplemental jurisdiction," which allows federal courts to hear and decide state law claims along with federal claims. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 387 (1998); see 28 U.S.C. § 1367. However, federal courts are permitted to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if "the district court has dismissed all claims over which it has original jurisdiction." Here, as noted, the complaint is subject to summary dismissal for several reasons, including the plaintiff's failure to state a viable claim for a constitutional violation under 42 U.S.C. § 1983. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) ("[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.").
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending her complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). As noted in more detail above, this complaint is subject to summary dismissal for several reasons; thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend her complaint. Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge November 9, 2020
Greenville, 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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).