Opinion
C/A 9:18-1146-RMG-BM
12-03-2018
Heather C. Hoffman, Plaintiff, v. P. J. Tanner, Chief Deputy Michael Hatfield, Staff Sergeant Eric Calendine, Corporal Andrew Calore, J. Edward Allen, Stephanie Smart-Gittings, Duffie Stone, Dr. Susan Erin Presnell, Ms. Catherine E. Heigel, Jerri Ann Roseneau, AT&T, and John Does x 20, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, asserting various claims against the named Defendants. Plaintiff's allegations in her fifty-eight (58) page Complaint and one hundred thirty-five (135) page attachment primarily center on events surrounding the gunshot death of her adult daughter, Ashley Paskiewicz. The named Defendants are all alleged to have been involved with Paskewicz and/or the investigation of her death, which was ruled a suicide. However, Plaintiff alleges, inter alia, that her daughter's death was a homicide.
The County employee Defendants (along with Beaufort County Sheriff P. J. Tanner and the named Sheriff's deputies, who are state officials) filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., on August 27, 2018. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on August 28, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for her to file an adequate response. Plaintiff was specifically advised that if she failed to file an adequate response, the Defendants' motion may be granted. Plaintiff thereafter filed a memorandum in opposition, with attached supporting documents, on October 4, 2018. See Court Docket No. 46.
These Defendants' motion is now before the Court for disposition. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Although Plaintiff has filed a motion for a "Trial Type Hearing" (Plaintiff is apparently requesting an evidentiary hearing) on this and other pending motions, the undersigned declines to schedule such a hearing because the facts and legal contentions are adequately presented in the filings of the parties, and a hearing such as is requested by the Plaintiff is neither required nor necessary and would not aid in the decisional process.
Allegations of Plaintiff's Complaint as relate to these Defendants
Plaintiff alleges that she last saw her daughter on May 27, 2017, when she stopped by Plaintiff's apartment to pick up a court document from the Beaufort County Magistrate Court. Plaintiff alleges that this court document stated that her daughter had been found not guilty of charges filed against her relating to an incident that had occurred on December 26, 2015, and that all records relating to the charges and her daughter's arrest were to be destroyed. Plaintiff alleges that the following day, her daughter went to her boyfriend's (Chris Moscola) boat, where she was served alcohol even though Moscola knew that Paskiewicz was an alcoholic. Plaintiff alleges that she thereafter spoke with her daughter by telephone on June 5, 2017, at which time her daughter was upbeat and excited about an upcoming trip she was taking. The following day (June 6, 2017) Plaintiff alleges she received two text messages from her daughter, but that when she responded by both calling and texting her daughter, she never received a response. Plaintiff alleges that she also sent a message to Moscola, but that he also did not respond. Plaintiff then alleges that:
On and between June 6, 2017, continuing through the present time all defendants individually, jointly, and collectively, conspired, directly or indirectly, in some fundamental official capacity, thereby misusing and abusing authoritative power they possess by virtue of state law, to create and affirmatively act in furtherance of a fabricated scenario of events concocted to mislead, deceive and conceal the truth regarding Ashley Paskiewicz's death on June 6, 2017. In so doing, all individual defendants knowingly, deliberately and maliciously conspired to deprive [Plaintiff] of clearly established statutory and constitutional protected rights under the First, Fourth, Sixth and Fourteenth Amendments as secured by the United States Constitution".Complaint, ¶ 10.
Plaintiff alleges that on June 6, 2017, the Defendants Calendine and Calore (both Beaufort County Sheriff's Deputies) and Allen (the Beaufort County Coroner) came to her residence to inform her that her daughter had committed suicide by shooting herself in the back yard of Mascola's home. Plaintiff then proceeds to set forth several argument for why her daughter's death should not have been ruled a suicide, and alleges that the Defendants engaged in a conspiracy under color of law to fraudulently conceal the truth about her daughter's death. Plaintiff alleges that she told the officers that the scene must have been staged, and further complains that the officers refused to take her to the scene or to view the body at that time. Plaintiff then goes on, over the course of several paragraphs, to complain about how the investigation of her daughter's death was conducted, including that Coroner Allen's listing the time of death on the death certificate as being at noon was a violation of South Carolina law because it set forth false or misleading information on a court record. Plaintiff further alleges that Calendine handed her the wrong business card, which Plaintiff believes "was an intentional act and not an oversight because the Beaufort County Sheriff's Department and the coroner fabricated a false scenario of events concerning Ashley's death on June 6, 2017, and lied about conducting an investigation". Id., p. 36.
Plaintiff alleges that on June 8, 2017 she spoke with both Calendine and Allen asking where her daughter had been shot, but that both of these Defendants refused to answer her questions. Plaintiff further alleges that these Defendants failed to properly secure he daughter's personal property on June 6, 2017, as they were required to do. Plaintiff alleges that this failure resulted in her daughter's property not passing through a proper chain of custody in violation of her statutory and constitutional rights. Plaintiff further complains about the demeanor displayed by the investigating officers during the investigative process, and that Calendine told her that Mascola was not considered a suspect or person of interest in the investigation, when he should have been. Plaintiff further alleges that her constitutional rights were violated because the officers refused to give her the name of the medical examiner at MUSC who had performed her daughter's autopsy, even though she had a legal and statutory right to this information.
Plaintiff alleges that on June 30, 2017, she discovered that her daughter's criminal charges were posted on the Beaufort County Fourteenth Judicial Circuit Court Public Website Index, even though (Plaintiff alleges) those charges were supposed to be "destroyed and/or non-existent", and that the maintenance of these charges on the website was therefore "in direct contempt" of the Beaufort County Magistrate Court Order of May 18, 2017, which required these charges to be removed from the public records. Id., ¶ ¶ 92-93. Plaintiff alleges that this was an egregious violation of her daughter's constitutional rights, and demonstrates malice, bias and prejudice by Beaufort County public officials against her daughter and her family. Plaintiff alleges she emailed the Chief Public Defender for Beaufort County requesting an explanation, with the Defendant Chief Deputy Michael Hatfield copied on the email. Id., ¶ ¶ 95-96. Plaintiff alleges she also separately emailed Hatfield on July 3, 2017 complaining about how the investigation into her daughter's death was being conducted. Id., ¶ 97. Plaintiff alleges that on August 17, 2017, she sent a certified request to the Defendant Sheriff Tanner requesting copies of the body cam recordings worn by his agents. Id., ¶ 112. Plaintiff alleges she received a response from Hatfield advising that there was no camera footage because the body worn cameras had not been activated at the scene, which Plaintiff alleges was a violation of state statute. Plaintiff alleges that on September 27, 2017, she went in person to the Sheriff's Department requesting copies of documents that allowed the Defendants to retain her daughter's phone, and that when it was suggested that she meet with either Calendine or Calore, she found it "egregious" that Sheriff Tanner refused to himself meet with her and to take responsibility and accountability for the actions of his department. Plaintiff further complains that the Sheriff's Office would not give her a copy of the search warrant allowing for her daughter's phone to be searched, and that the Sheriff's Department is unlawfully retaining her daughter's Apple iPhone. Finally, Plaintiff alleges that on January 23, 2018, she received a voice mail message from Calore informing her that he had closed the investigation and that Plaintiff could pick up a copy of the report from the front desk at the Sheriff's Department. Id., ¶ 152.
Plaintiff first asserts a claim for conspiracy pursuant to 42 U.S.C. § 1983, alleging that the Defendants conspired to misuse and abuse their authoritative power to fabricate a narrative of events concerning her daughter's death with the intent to mislead, deceive, and fraudulently conceal the truth about the circumstances involving her daughter's death, all in violation of her constitutional rights (Count I). Plaintiff also alleges that the Defendants conducted an unlawful and unconstitutional search and seizure of her daughter's cell phone (which Plaintiff alleges was actually her cell phone) for ten months in violation of her constitutional rights (Count II), that officials with the Beaufort County Magistrate Court and the Beaufort County Sheriff's Department (among others) conspired to concoct and/or maintain a false/perjured charge and conviction on her daughter's court record in contempt of the Beaufort County Magistrate Court of May 8, 2017, in violation of her constitutional rights (Count III), that the Defendants deprived her of her constitutional right of access to the courts for a redress of her claims, and that by concocting the fabricated scenario to fraudulently conceal from the Plaintiff the truth about her daughter's death, Plaintiff was deprived of her statutory and constitutional claims against "culpable parties" (Count IV), that the individual Defendants violated her constitutional rights because they either knew or should have known of the continuing civil rights violations that were occurring and stood by without intervening to prevent and/or correct the official misconduct (Count V), and that the Defendants subjected her to intentional infliction of emotional distress (Count VII).
Even though Plaintiff titles this claim as being brought pursuant to 42 U.S.C. § 1983, in the body of her Complaint she correctly identifies this claim as being a claim under state law. See Complaint, ¶ ¶ 263-267.
Plaintiff's Count VI has not been listed, as it is a claim asserted solely against the Defendant AT&T and does not pertain to these Defendants.
Plaintiff seeks injunctive relief against the Defendants, to include an order from this Court that a proper investigation be conducted into her daughter's death, as well as enjoining the Defendants from continuing to display her daughters arrest records on the public website index of the Fourteenth Judicial Circuit Court. Plaintiff also wants this Court issue subpoenas to any and all health care providers involved in her daughter's medical care and treatment between 2014 and 2017. See generally, Plaintiff's Complaint, with attached Exhibits.
Plaintiff has attached numerous exhibits to her Complaint. In addition to the factual allegations of the Complaint as are summarized hereinabove, the Court may also consider as part of a review of the Defendants' 12(b) motion any document that is "integral to and explicitly relied on in the complaint." Phillips v. LCI International, Inc., 190 F.3d 609, 618 (4th Cir. 1999) [In addition to the factual allegations of the Complaint, the Court may also consider as part of the review of a 12(b) motion any documents that are "integral to and explicitly relied on in the complaint"]; Olson v. Midland Funding, LLC, 578 Fed.Appx. 248, 250 (4th Cir. 2014) ["In considering a Fed.R.Civ.P. 12(b)(6) motion, a court may consider the complaint itself and any documents that are attached to it . . . ."] (internal citations omitted).
Discussion
These Defendants seek dismissal of all of Plaintiff's claims asserted against them. When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine Holding, LLC, 318 F.Supp. 2d 136, 144 (S.D.N.Y. 2004) ["[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable."]. Further, the Federal Court is also charged with liberally construing a complaint filed by a pro se litigant (such as the Plaintiff here) to allow for the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972).
Even so, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the pleadings in this case and the arguments of the parties, and in compliance with the requirements of Rule 12 and the liberal construction given to pro se pleadings, the undersigned finds for the reasons set forth hereinbelow that the Defendants' motions should be granted, and that they should be dismissed as party Defendants in this case.
Defendant Jerri Ann Roseneau
Roseneau is alleged in the Complaint to be the Beaufort County Magistrate Court Clerk. However, Defendants assert in their motion to dismiss that Roseneau is actually the Circuit Court Clerk for Beaufort County, a fact confirmed by the Beaufort County Court website. See https://www.bcgov.net/departments/Legal-and-Court/clerk-of-courts/index.php (last visited November 27, 2018). Defendants further assert in their motion that Roseneau has no control or authority over the Magistrate's Court. However, there is no evidence before the Court as part of the Defendants' Rule 12 motion to establish that fact, and in any event Plaintiff's claim as it relates to Roseneau is that she conspired with officials from the Beaufort County Sheriff's Department to maintain on the court website what Plaintiff contends is a false or perjured charge and conviction against her daughter even though there was a Magistrate Court order that that record was to be expunged. It is unclear whether Roseneau would be the official responsible for implementing any court expungement orders, but Plaintiff alleges that she was, and as a county official, Roseneau is subject to suit under § 1983 for violating an individual's constitutional rights. See McCubbin v. Weber County, Nos. 15-132 and 15-133, 2017 WL 3394593 at * 12 (D.Utah Aug. 7, 2017) [County agent may be sued in official capacity for injunctive and declaratory relief].
The Court may take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
Plaintiff seeks only injunctive relief in this case, and therefore Plaintiff's claim against Roseneau (as well as the Sheriff's Department Defendants) relating to this claim is against them in their official capacities. See Golub v. Goodes, No. 09-380, 2010 WL 3702614 at * 3 (S.D.Ind. Sept. 10, 2010)["[A] claim for injunctive relief cannot be brought against government employees in their individual capacities . . . because it is only in their official capacities that injunctive relief can be granted."]. Even so, § 1983 "'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)); see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999) [A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief."]. 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). Here, Plaintiff's claim against Roseneau fails because she has failed to set forth a "plausible claim" in her Complaint that Roseneau (even assuming for purposes of the Defendants' motion to dismiss that she is the official responsible for expunging files from court websites when an order for expungement has been entered, and that such an order was in fact entered relating to the case involving Plaintiff's daughter) has violated any of the Plaintiff's Constitutional rights.
First, Plaintiff has failed to show or establish through the allegations of her Complaint that she has a federal constitutional or statutory right to have her daughter's criminal records expunged from a state court website, even assuming an expungement order for such records has in fact been entered by a state court judge. While Roseneau's failure to do so (assuming for purposes of the Defendants' motion to dismiss that she is the official who would be responsible for doing so) may (or may not) be a violation of some state law or statute, Plaintiff has failed to establish a "plausible claim" that this would be a violation of Plaintiff's federal statutory or constitutional rights. See Anderson v. Sumner County Sheriff's Office, No. 17-609, 2017 WL 4176274 at * 7 (M.D.Tenn. Sept. 20, 2017) [Finding that even assuming that the state statute upon which Plaintiff relies created a duty under state law, the violation of a right created and recognized by state law does not amount to a constitutional violation and is not actionable under § 1983]; Baker v. McClellan, 443 U.S. 137, 146 (1976) [§ 1983 claim does not lie for violation of state law duty of care]; Keeler v. Pea, 782 F.Supp. 42, 44 C.D.S.C. 1992); cf. Scott v. Hamidullah, No. 05-3027, 2007 WL 904803, *5 n. 6 (D.S.C. March 21, 2007) (citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)); Johnson v. S.C. Dep't of Corrections, No. 06-2062, 2007 WL 904826 at *12 (D.S.C. Mar. 21, 2007) ["Plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, does not amount to a constitutional violation."] (citing Riccio, 907 F.2d at 1469 [if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue]).
Records from Beaufort County reveal that Paskiewicz was arrested on December 26, 2015 and charged with DUI under .10 and open container. Pursuant to a letter attached to the Complaint from Public Defender Smart-Gittings, Plaintiff entered into a negotiated plea to Driving Under the Influence of Alcohol (DUAC) and the other charges were dismissed and expunged. See Court Docket No. 1-1 at 18. Therefore, even if Plaintiff can bring this claim on behalf of Paskiewicz, that it is not a false charge and conviction because Paskiewicz pled guilty to this charge as part of the plea agreement, and the Beaufort County records reveal only that Paskiewicz pled guilty to DUAC on April 6, 2017, for which she was sentenced to suspension of her driver's license for 30 days. See also, n. 5, supra.
Plaintiff's claim and requested relief is also not of the sort to justify federal intervention by this Court to order the Defendant Roseneau (or any other local official) to expunge criminal records from a state court website. Cf. In re Blackwater Security Consulting, LLC, 460 F.3d 576, 593 (4th Cir. 1976) ["Mandamus is an extraordinary remedy whose issuance depends upon the discretion of the court considering the petition."]; see also United States ex re. Rahman v. Oncology Associates, P.C., 198 F.3d 502, 511 (4th Cir. 1999) [Describing a federal writ of mandamus as a "wild-card remedy"]. Moreover, if such a federal statutory or constitutional right existed, it would be a right held by the Plaintiff's now deceased daughter, not the Plaintiff. Plaintiff cannot litigate such a claim on her daughter's behalf. Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005)[finding that a pro se person's right to litigate for oneself does not create a similar right to litigate on behalf of others]; Asad v. Arab Bank, PLC, 117 F. App'x 466, 467 (7th Cir. Nov. 12, 2004) [Plaintiff who is not a lawyer may not represent the interests of any other litigant]. Additionally, even if Plaintiff could properly maintain such a claim on her daughter's behalf, courts have found that it would now be moot. Cf. Bowman v. Correctional Corporation of America, 350 F.3d 537, 549 ( 6th Cir. 2003) [Holding that any claim for injunctive relief asserted on behalf of a deceased person was rendered moot by the person's death]; Copsey v. Swearingen, 36 F.3 1336, 1339 (5th Cir. 1994) [Holding that claims for injunctive and declaratory relief were rendered moot by the plaintiff's death].
To establish the conditions necessary for issuance of a writ of mandamus, the party seeking the writ must demonstrate that (1) he or she has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he or she desires; and (5) the issuance of the writ will effect "right and justice" in the circumstances. United States ex re. Rahman, 198 F.3d at 511. Plaintiff's claim and allegations fail to meet this standard, as she has failed to establish that she has a clear and indisputable right to the relief sought, that Roseneau has a clear duty to do the specific act being requested, or that she does not have other adequate means, primarily by going through the state court process, to obtain the goal she seeks.
Finally, Roseneau is entitled to quasi-judicial immunity in any event. See Wymore v. Green, 245 F. App'x 780, 783 (10th Cir. 2007) [affirming district court's grant of absolute quasi-judicial immunity to the state court clerk, who allegedly refused to file the prisoner's court documents]; Martin v. Rush, No. 13-693, 2013 WL 2285948, at * 5 (D.S.C. May 23, 2013) [applying quasi-judicial immunity to clerk who allegedly failed to provide the plaintiff with a hearing transcript despite his request]; Robinson v. McBride, No. 13-352, 2013 WL 2099491, at * 4 (D.S.C. 2013)[applying quasi-judicial immunity to clerk who allegedly failed to properly process the plaintiff's notice of appeal], adopted, 2013 WL 2099707 (D.S.C. May 14, 2013), aff'd, 540 F. App'x 212 (4th Cir. 2013); Wiley v. Buncombe County, 846 F.Supp.2d 480, 485 (W.D.N.C.2012) [quasi-judicial immunity applied to Clerk who allegedly failed to deliver judge's writ of habeas corpus to the appropriate parties]. Plaintiff's allegations fail to set forth a "plausible claim" that Roseneau was acting outside of her role as the Clerk of Court with respect to any of her allegations. See Henriksen v. Bentley, 644 F.2d 852, 855 (10th Cir. 1981) ["Clerks of Court have been ruled immune to suit under § 1983 when performing 'quasi-judicial' duties"].
Therefore, as the claim relating to expungement of this court record is the only claim Plaintiff asserts against Roseneau, she is entitled to dismissal as a party Defendant in this case. Moreover, to the extent this claim encompasses any of the Sheriff's deputy Defendants, as this claim is itself subject to dismissal for the reasons stated, the Sheriff's deputy Defendants (to the extent Plaintiff has intended to associate them with this claim) are also entitled to dismissal as party Defendants under this claim, with this claim itself being dismissed in toto.
Sheriff Department Defendants
Plaintiff also asserts her claims against Beaufort County Sheriff P. J. Tanner, Chief Deputy Michael Hatfield, Sergeant Eric Calendine, and Corporal Andrew Calore. Since County Sheriffs are state officers, not county employees, a suit against Sheriff Tanner is a suit against the state of South Carolina for purposes of Eleventh Amendment immunity. Gulledge v. Smart, 691 F.Supp. 947, 954-955 (D.S.C. 1988)_[Sheriff's office entitled to Eleventh Amendment immunity from suit]; see Cash v. Thomas, No. 12-1278, 2013 WL 3804375, at * 7 (D.S.C. July 19, 2013)["It is well settled, both in South Carolina and federal law, that a Sheriff in South Carolina is an arm of the State and not a County employee and therefore is entitled to Eleventh Amendment immunity in his or her official capacity from suit in Federal Court"], citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996). Further, as employees of the Sheriff, the Defendants Hatfield, Calendine and Calore are all also state employees and therefore are immune from suit in federal court in their official capacity. Gulledge, 691 F.Supp. at 954-955 [Sheriffs and deputy sheriffs are agents of the State and cannot be sued in their official capacities].
However, case law indicates that while these Defendants are immune from suit in this Court in their official capacities for damages, Plaintiff may pursue declaratory and/or injunctive relief against them under § 1983. See Ex parte Young, 209 U.S. 123 (1908); Lytle v Griffith, 240 F.3d 404, 408 (4th Cir. 2001)[Ex parte Young authorizes "suit against state officers for prospective equitable relief from ongoing violations of federal law"]. Even so, as was the case with Roseneau, Plaintiff has failed to set forth a "plausible" claim under § 1983 against any of these Defendants in her Complaint.
First, to the extent Plaintiff complains that the Defendants engaged in a "conspiracy" to improperly investigate or hide the true facts of her daughter's death, Plaintiff cannot obtain an order from this Court ordering these Defendants to conduct a "proper investigation" into her daughter's death or to pursue criminal charges against Moscola. See Graw v. Fantagsky, 68 Fed. Appx. 378, 383 (3d Cir. 2003)[Observing that "an allegation of a failure to investigate, without another recognizable constitutional right, is not sufficient to sustain a section 1983 claim."]; Gini v. Las Vegas Metro. Police Dep't, 40 F3d 1041, 1045 (9th Cir. 1994) [Police officers do not have an affirmative duty to investigate crimes in a particular manner]; Davis v. Decker, No. 13-1500, 2013 WL 5934541, at * 3 (D.S.C. Nov. 4, 2013) ["Plaintiff does not have a constitutional right to have police conduct an investigation or to have a specific outcome from a law enforcement investigation. Further, plaintiff does not have a judicially cognizable interest in the criminal prosecution of another person"]; Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990)["No citizen has an enforceable right to institute a criminal prosecution"]; Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 378-380 ["Federal courts have traditionally and, to our knowledge, uniformly refrained from overturning at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made."]; Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) [a private citizen does not have a judicially cognizable interest in the prosecution or non-prosecution of another person]; Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) [Neither members of the public at large nor a victim has the right to have another criminally prosecuted]; Anderson, 2017 WL 417274 at * 7; see also Collins v. Palczewski, 841 F.Supp. 333, 340 (D.Nev. 1993) ["Long ago the courts of these United States established that 'criminal statutes cannot be enforced by civil actions'"].
As a general matter, a victim of a crime "does not have a constitutional right to have the police investigate his case at all, still less to do so to his level of satisfaction." Rossi v. City of Chi., 790 F.3d 729, 735 (7th Cir. 2015) (citing De Shaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989)); see Smith v. McCarthy, 349 F. App'x. 851, 859 (4th Cir. 2009) (citing Sattler, 857 F.3d at 227). Thus, a § 1983 claim by the victim of a crime premised on the failure of police to conduct an investigation necessary to provide evidence in support of the victim's civil action against the perpetrator does not allege the violation of a right protected by the Due Process Clauses of the Constitution. Woods v. Miamisburg City Schs., 254 F.Supp.2d 868, 873 (S.D.Ohio 2003) ["[T]he law is clear that a private citizen has no constitutional, statutory, or common law right to require a public official to investigate or prosecute a crime"] (citations omitted). In any event, Plaintiff is not even the victim of the crime she alleges was committed. Moreover, since Plaintiff does not have a judicially cognizable interest in the criminal prosecution of another person, she lacks standing to even raise such a claim. Linda R.S. v. Richard D., 410 U.S. at 619. Further, the remedy of mandamus is not available to a litigant where an official has the discretion whether to act or not. Cf. Inmates of Attica Correctional Facility, 477 F.2d at 378-80 (collecting cases); see also In Re Ellerbee, No. 02-6214, 2002 WL 1792110 (4th Cir. Aug. 6, 2002) [denying mandamus relief].
Additionally, because there are no allegations that the Sheriff's Department or any of its officers was deliberately indifferent to illegal conduct that violated Plaintiff's civil rights, the Complaint fails to state a cognizable § 1983 claim against these Defendants. See Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 694 (1978).
The benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its 'substantive' manifestations." Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) (referencing DeShaney, 489 U.S. at 200-03). See Doe v. S.C. Dep't. of Soc. Servs., 597 F.3d 163, 170-171 (4th Cir. 2010). Concededly, although there is no general constitutional right to police protection, the State may not discriminate in providing such protection. However, an equal protection claim for inadequacy of police protection can be sustained only upon proof that the failure to investigate a crime or the non-arrest of a perpetrator was the result of discrimination against a protected class. See McKee v. City of Rockwall, 877 F.2d 409, 418 (5th Cir. 1989); Watson v. Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir. 1988). Here, Plaintiff makes no allegation that these Defendants failed to act because of Plaintiff's membership in any protected class.
Additionally, to the extent Plaintiff's requested relief includes that some or all of these Defendants be reprimanded or otherwise disciplined for their allegedly improper or conspiratorial decisions or job performances, the federal courts are not personnel directors for state offices or officials. Therefore, such relief is also unattainable in this action. See Maxton v. Johnson, 488 F.Supp. 1030, 1032, n. 2 (D.S.C. 1980), citing United States v. White County Bridge Commission, 275 F.2d 529, 535 (7th Cir. ) [a federal district court lacks the inherent power to hire or remove officials not within the executive control of that federal district court], cert. denied sub nomine, Clippinger v. United States, 364 U.S. 818 (1960); Street v. Rodriguez, No. 12-13995, 2014 WL 840083 at * 5 (E.D.Mich. Mar. 2, 2014) [The court has no authority to order a state to terminate the employment, or otherwise discipline, a state officer].
To the extent Plaintiff is seeking declaratory relief from these Defendants for the return of her daughter's cell phone and/or to allow her to have access to copies of the investigative and police reports and other materials relating to the investigation of her daughter's death on June 6, 2017, she again fails to set forth a viable federal claim against these Defendants. As the cell phone at issue was her daughter's cell phone and was found with the body of the deceased, Plaintiff's allegations do not establish that the Plaintiff has a constitutional right to demand its return to her. Further, even assuming for purposes of the Defendants' motion to dismiss that the other information and materials Plaintiff is requesting are subject to disclosure to her under the Freedom of Information Act (FOIA), but have not been turned over following a proper request made, that would be a violation of state, not federal, law. DeShaney, 489 U.S. at 200-203 [§ 1983 does not impose liability for violations of duties of care under state law]. Additionally, although perhaps not a proper ground on which to base an order of dismissal in this case pursuant to Rule 12, it is worth noting that in their motion to dismiss, these Defendants (through counsel) represent to the Court that "the department can provide . . . all reports relative to the investigation as well as the cell phone to the Plaintiff now that the investigation into this matter is closed". Defendants Brief, p. 3. Defendants represent that these records and the phone initially could not be produced when requested by the Plaintiff because the investigation was still open, but that they may now be provided since the investigation has now been closed, and are "available to the Plaintiff upon her following the procedure for the release of evidence". Id., p. 4. Plaintiff is further not entitled to her requested relief of having this Court issue subpoenas to any and all health care providers involved in her daughter's medical care and treatment between 2014 and 2017. See Bias v. Mognihan, 508 F.3d 1212, 1219 (9th Cir. 2007) ["A district court lacks the power to act as a party's lawyer, even for pro se litigants."]; Piler v. Ford, 542 U.S. 225, 231 (2004) [Holding that district court judges need not act as counsel to pro se litigants, and that requiring courts to do the kind of work normally done by counsel "would undermine district judges' role as impartial decision makers"].
Finally, although it does not appear that Plaintiff is claiming in this lawsuit that she is somehow being denied access to the courts by these Defendants, to the extent that is her claim, she has failed to set forth sufficient facts to establish that she would be entitled to any injunctive or declaratory relief against these Defendants. There are simply no factual allegations in the Complaint to show that any of these Defendants have or are preventing her from pursuing legal claims in this court, or are otherwise denying her access to the courts. Indeed, Plaintiff's filing of her fifty-eight (58) page Complaint (with another 135 pages of attached exhibits) in this case, not to mention her numerous court filings and submissions since this case was filed, belies any such assertion. Sanders v. Rose, 576 F.Appx. 91, 94 (3rd Cir. 2014) ["To sufficiently plead an access-to-courts claim, [the plaintiff] must plead that 'official acts . . . may have allegedly have caused the loss . . . of a meritorious case'"], citing Christopher v. Harbury, 536 U.S. 403, 416 (2002). Hence, Plaintiff's allegation that alleged "cover up" activity made successful ligation by her more difficult, as for example by interfering with potential sources of evidence, is not enough. Rather, to state a claim of unconstitutional denial of access to the courts of this type, a complaint must allege that the cover-up activity prevented the Plaintiff from filing the civil suit at issue. See Rossi v. City of Chicago, 790 F.3d at 736-737 ["[Plaintiff] was not denied judicial access because he knew all the relevant facts of his case and was free to pursue legal redress at all times"].
Rather, Plaintiff's claim appears to be that she has been denied access to the courts because she would have been able to sue someone (presumably Moscola) for a "redress of her claims" but for the Defendants' alleged failure to properly pursue charges involving her daughter's death against "culpable parties". However, that is not a viable claim. See, discussion involving no right to investigation or the bringing of criminal charges, supra.
It is also noted that Plaintiff is a frequent filer of litigation in this Court, further evidencing that she is not being denied access to the courts. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)[a federal court may take judicial notice of the contents of its own records].
Therefore, the Sheriff's Department Defendants (Tanner, Hatfield, Calendine and Calore) are entitled to dismissal as party Defendants under Plaintiff's federal claims. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)["Complaint must contain facts which state a claim as a matter of law and must not be conclusory"]; Johnson v. Holder, No. 11-2650, 2012 WL 4587355, * 1 (D.S.C. Sept. 28, 2012) ["More than labels and conclusions [are required], and a formulaic recitation of the elements of a cause of action will not do"] (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), adopted by, 2013 WL 314753 (D.S.C. Jan. 28, 2013); House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim].
Defendant Edward Allen
Allen is alleged to be the Beaufort County Coroner. Plaintiff alleges that Allen listed the time of her daughter's death on the death certificate as being at noon, that this was a violation of South Carolina law because it set forth false or misleading information on a court record, and requests that this Court order "Ashley Paskiewicz's Certificate of Death be amended and/or corrected to factually and accurately reflect the true cause, manner and time of death". Complaint, ¶ 275. This claim is without merit.
To the extent Allen is intended to also be a named Defendant with respect to Plaintiff's other claims concerning the (allegedly) improper and conspiratorial investigation into her daughter's death, he is entitled to summary judgment on those claims for the same reasons as the other Defendants discussed herein. See generally, discussion, supra.
Plaintiff herself concedes that this is a state law claim, as she herself cites to S.C. Code Ann. § 44-63-150 [Correction of mistakes on birth or death certificates] as being the basis for the relief she requests. See Complaint, ¶ 275. For the reasons previously discussed, Plaintiff is not entitled to a federal court order requiring the Defendant Allen to perform the act she requests, whether it is a discretionary act or state statutory duty of him or his office (even assuming Plaintiff was otherwise entitled to the relief she seeks). Linda R.S. v. Richard D., 410 U.S. at 619 ["Mandamus relief is warranted only when the petitioner has a clear right to the relief sought and there are no other means available for seeking that relief"]; Abebe v. Richland County, No. 09-2469, 2009 WL 6582396, at * 11-12 (D.S.C. Oct. 8, 2009) [Noting that Plaintiff's request for declaratory judgment "misses the mark" when he asked the court for declarations that the acts and omissions described in the complaint violated his rights under the Constitution] report and recommendation adopted, 2010 WL 2131062 (D.S.C. June 14, 2010), aff'd 399 Fed. Appx. 820 (4th Cir. 2010); cf. Kobe v. Haley, 666 F.Appx. 281, 298-299 (4th Cir. 2016) [A federal court may only issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal law]; Johnson, 2007 WL 904826 at *12 ["Plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, does not amount to a constitutional violation."]. Therefore, Coroner Allen is entitled to dismissal as a party Defendant in this case.
State Law Claim for Intentional Infliction of Emotional Distress
The only other claim in which Plaintiff has (apparently) intended to include these Defendants is her claim for intentional infliction of emotional distress, which is a state law claim. These Defendants did not move in their motion for dismissal as Defendants under this claim. Even so, as the only relief Plaintiff seeks in this case is the injunctive and/or declaratory relief already discussed, and as she is not entitled to any such relief against these Defendants (see discussion, supra), the undersigned finds that Plaintiff has also failed to set forth a viable state law claim for relief against any of these Defendants. Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) [Plaintiff has burden of alleging facts sufficient to state all the elements of a claim].
The undersigned is also constrained to note that Plaintiff's state law claim (as applied to these Defendants) would be subject to the constraints and immunities contained in the South Carolina Tort Claims Act (SCTCA) as well as the Eleventh Amendment to the Constitution. However, as the Defendants have not raised or addressed any of these defenses in their motion, and as these Defendants are entitled to dismissal as Defendants under this cause of action for the reasons discussed above, an analysis of these statutes and constitutional provision has not been included.
Therefore, to the extent these Defendants are included among the Defendants Plaintiff has intended to sue in her state law claim for intentional infliction of emotional distress, they are entitled to dismissal as party Defendants under that claim. Harper v. United States, 423 F.Supp. 192, 196 (D.S.C. 1976)["[W]here the claims in a complaint are insufficiently supported by factual allegations, these claims may be properly dismissed by summary dismissal"].
Conclusion
While the Court is certainly sympathetic to the Plaintiff in the loss of her daughter, she has simply failed to set forth a plausible claim in her Complaint for injunctive and/or declaratory relief against any of these named Defendants. Iqbal, 129 S.Ct. at 1949 [to survive a motion to dismiss, the plaintiff must set forth sufficient factual matters to state a plausible claim for relief "on its face"]; see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 [While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, factual allegations must be enough to raise a right to relief above the speculative level]. Therefore, it is recommended that these Defendants' motion to dismiss be granted, and that these Defendants be dismissed as a party Defendants in this case. Further, to the extent the claims discussed herein are asserted only against these Defendants, since they have been found to be without merit, those particular claims should be dismissed in toto.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge December 3, 2018
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).