Opinion
C. A. 2:22-02162-BHH-MHC
06-26-2023
Edward Gordon Jones, Plaintiff, v. Doug Richardson, Stuart Sarratt, Brandon Prino, Catherine Dursse, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
This is a civil action filed by Plaintiff, Edward Gordon Jones, a pretrial detainee at the Greenville County Detention Center (GCDC). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. By Order (ECF No. 7) dated September 27, 2022, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring his case into proper form for evaluation and possible service of process. Plaintiff has now partially complied with the Order and the case is in substantially proper form. In the Order, Plaintiff was also notified of pleading deficiencies and given the opportunity to amend his Complaint. He has filed an Amended Complaint (ECF No. 10).
Plaintiff has also filed numerous letters (ECF Nos. 12, 13, 15, and 18) that the undersigned has reviewed.
I. BACKGROUND
Records from the Court of Common Pleas for Greenville County indicate that Plaintiff has pending charges for first degree burglary (2021A2320500366), kidnapping (2021A2320500367), assault and battery of a high and aggravated nature (2021A2320500368), and possession of a weapon during a violent crime (2021A2320500369). On February 14, 2023, the grand jury for Greenville County returned true bill indictments on all four charges. See Greenville County Thirteenth Judicial Circuit Public Index, https://www2.greenvillecounty.org/S CJD/PublicIndex/PISearch.aspx [search the case numbers listed above] (last visited June 22, 2023).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
In his Amended Complaint, Plaintiff brings claims under 42 U.S.C. § 1983 (§ 1983) for alleged violations of his constitutional rights. Specifically, he asserts violations of his First, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendment rights. ECF No. 11 at 4. He requests relief of seven million dollars and that all charges against him be dropped. Id. at 6, 35.
Although Plaintiff also states that he claims violations of his “human rights, inalienable rights, legal rights, [and] Bill of Rights” (ECF No. 11 at 4), he has not identified any specific constitutional or statutory provision that was allegedly violated, other than the constitutional amendments listed above.
The incidents for which Plaintiff has been criminal charged allegedly occurred on March 23, 2021. See ECF No. 11 at 15. Plaintiff claims that Defendant Officer Prino (Prino), an officer investigating the alleged crimes, received location information about Plaintiff's cell phone (as well as other cell phones). He asserts that Prino “somehow [put Plaintiff] into the equation by doing a background check and discovering that [Plaintiff] had a felony background and his information came back from the phone company indicating what devices (phones) were in the area around the time of the alleged incident.” ECF No. 11 at 13.
Defendant Catherine Dursse (Dursse) is the purported victim of the crimes of which plaintiff is accused. On May 7, 2021, Dursse allegedly identified Plaintiff as the perpetrator from a “six-pack” photo lineup presented to her by Prino. Id. at 12, 15.
Plaintiff asserts that sometime from May 7 to 10, 2021, Prino persuaded the state magistrate judge that there was probable cause for arrest warrants without “forensic evidence such as a fingerprint, etc. indicating that [Plaintiff] enter into another person's dwelling without consent and to commit a crime.” ECF No. 11 at 13-14. Plaintiff appears to argue that there needed to be a fingerprint, palm print, or DNA found inside Dursse's apartment in order to establish probable cause. Id. at 14. On May 12, 2021, Prino allegedly arrested Plaintiff and took him to the GCDC. Id. at 12.
Plaintiff alleges that Defendant Doug Richardson (Richardson), the Greenville County assistant solicitor who is prosecuting Plaintiff's criminal cases, does not have enough facts or physical evidence as to the four criminal charges, such that Plaintiff believes that Richardson should have dropped the charges. See ECF No. 11 at 12, 20. Plaintiff contends that if Richardson had reviewed Plaintiff's case he should have known that there were “not enough facts beyond reasonable doubt that [Plaintiff] was involved in a criminal activity.” Id. at 20. Additionally, Plaintiff claims that Richardson knows the warrants for Plaintiff's arrest “were invalid and that an error was possibly made.” Id. at 21.
Plaintiff asserts that Defendant Stuart Sarratt (Sarratt), an assistant public defender with the Greenville County Public Defender's Office, violated his constitutional rights by failing to properly represent him in the criminal cases. He appears to allege that Sarratt did not do enough to obtain a bond for him, did not timely request a speedy trial at the time Plaintiff wanted, did not timely provide him with a DNA lab report, did not obtain another bond hearing, did not make regular jail visits, did not file a motion to dismiss the criminal cases, and generally did not “push issues for [Plaintiff's] release from confinement.” ECF No. 11 at 18-20.
Records from Greenville County indicate that Defendant Sarratt was relieved as counsel and another attorney was appointed to represent Plaintiff on August 17, 2022.
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), 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), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Release from Prison not an Available Remedy under § 1983
To the extent Plaintiff is requesting that this Court order that his charges be dropped and/or that he be released from prison, these are not remedies available in a civil rights action under § 1983. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length or duration of confinement is within the core of habeas corpus); Grayson v. Gowdy, No. CA 0:08-3477-CMC-PJG, 2008 WL 5280337, at *2 (D.S.C. Dec. 18, 2008) (noting that a request that pending charges be expunged and dismissed is a type of relief that that may only be obtained in a habeas action). As such, if Plaintiff wishes to challenge the duration of his confinement, he must obtain habeas forms from the Clerk of Court and file a separate action, after he has fully exhausted his state court remedies.
To exhaust state court remedies in South Carolina from a criminal conviction or sentence, a defendant may file a direct appeal. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal was filed and is ultimately unsuccessful (or if no direct appeal was filed), a petitioner may file a PCR application in a court of common pleas. See S.C. Code Ann. § 17-27-10, et seq. (1976); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977) (noting that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy). If a South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, a petitioner can file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code Ann. § 17-27-100; Knight v. State, 325 S.E.2d 535 (S.C. 1985). If a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts or federal collateral review of the grounds raised in his PCR application may be barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that exhaustion requires state prisoners to complete at least one complete round of the state's established appellate review process by presenting the ground for relief in a face-up and square fashion).
B. Younger/Interference with State Criminal Proceedings
Plaintiff appears to be asking that this Court dismiss his charges or release him based on his alleged alibi witness and Plaintiff's theories that there was not enough evidence for an arrest warrant, there was not enough of the type of evidence he believed must be presented, the photo lineup identification was a case of mistaken identity, and his cell phone pinging in the area of the crime is not good evidence because Plaintiff lived in the same apartment complex as the alleged victim. However, these are not arguments for this Court at this time and instead are arguments that Plaintiff may present to the state court in his pending criminal proceedings. To the extent Plaintiff is requesting that this Court intervene in his pending criminal cases, this action is subject to summary dismissal. Federal courts, absent extraordinary circumstances, are not authorized to interfere with a State's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989). Specifically, the Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44.
C. Defendant Prino
Plaintiff appears to be attempting to allege federal claims pursuant to the Fourth Amendment against Defendant Prino for false arrest, malicious prosecution, and false imprisonment. He contends that Defendant Prino did a poor job investigating that alleged crimes and failed to present sufficient evidence such that arrest warrants should not have been issued. Plaintiff claims that the evidence presented (including the photo lineup identification and cell phone information) was inadequate and contends there should have been “physical solid evidence” to show he was guilty before he could be arrested and imprisoned. He appears to assert that thereafter he was maliciously prosecuted because he has a witness that can attest to his whereabouts and because later lab reports failed to implicate him. However, for the reasons discussed below, Plaintiff fails to state a claim against Prino.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. Section 1983 actions premised on false arrest, false imprisonment, or malicious prosecution are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”); Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (“What is conventionally referred to as a ‘§ 1983 malicious prosecution' action is nothing more than a § 1983 claim arising from a Fourth Amendment violation.”). The same is true of such claims complaining of due process violations. Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 184 (4th Cir. 1996) (“[T]he Fourth Amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to trial.”); see also McFadyen v. Duke University, 786 F.Supp.2d 887, 936 (M.D. N.C. 2011) (“[T]hese alleged Fourth Amendment violations are the claims already alleged by Plaintiffs in Counts 1 and 2, and there is no legal basis for asserting a separate ‘abuse of process' claim.”), aff'd in part, rev'd in part, dismissed in part sub nom. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012); cf. Santiago v. Fenton, 891 F.2d 373, 388 (1st Cir.1989) (“[A]buse of process-as a claim separate from a claim that there was no probable cause to make the arrest or institute the prosecution-is not cognizable as a civil rights violation under § 1983.”).
Plaintiff also appears to argue that Prino violated his First Amendment rights because Prino sought warrants from a magistrate judge without talking to Plaintiff first. ECF No. 11 at 26. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. Here, Plaintiff simply has provided no authority to indicate that a police officer has to talk to a suspect prior to seeking an arrest warrant or that any of Defendants' actions violated his First Amendment rights.
Plaintiff admits that his arrest was made pursuant to arrest warrants, such that he fails to state a claim for false arrest or false imprisonment. “[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, 85 F.3d at 183); 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). Here, Plaintiff fails to plausibly allege that the arrest warrants were not valid on their face, such that he has not alleged sufficient facts to allege a claim that the arresting officer could incur individual liability for arresting or imprisoning Plaintiff in violation of the Fourth Amendment.
An officer's materially false statements or material omissions in obtaining the warrant can negate a finding of probable cause. See Miller v. Prince George's Cty, 475 F.3d 621, 627 (4th Cir. 2007). However, Plaintiff has made no such allegations.
Additionally, an officer's failure to investigate, possession of exculpatory evidence, or knowledge by an officer that the arrestee was innocent, does not give rise to false arrest/false imprisonment because the indictment or warrant continues to provide probable cause. See, e.g., Taylor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996) (finding that a police investigator did not violate the Fourth Amendment when he declined to terminate criminal proceedings after learning from the plaintiff's roommate that the plaintiff was not involved in the alleged drug offense as exculpatory evidence “does not render the continuing pretrial seizure of a criminal suspect unreasonable under the Fourth Amendment.”); Brooks, 85 F.3d at 184-85 (finding no Fourth Amendment violation where an arresting officer did not attempt to halt the criminal proceedings after learning that the plaintiff had not committed the suspected offenses).
Moreover, “an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Durham, 690 F.3d at 189 (internal quotation marks omitted); see also Provet v. South Carolina, No. 6:07-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (finding that § 1983 claims of false arrest and malicious prosecution were precluded because of the issuance of an indictment). Here, the indictments that the grand jury returned conclusively establish that the officers had probable cause to arrest Plaintiff. See Durham, 690 F.3d at 189.
Plaintiff instead may be attempting to assert a claim for malicious prosecution. Under § 1983, “allegations that an arrest made pursuant to a warrant was not supported by probable cause, or claims seeking damages for the period after legal process issued,” advance a claim for malicious prosecution. Brooks, 85 F.3d at 182. To state a claim for malicious prosecution under § 1983, a plaintiff must establish that (1) the defendant seized the plaintiff “pursuant to legal process that was not supported by probable cause,” and (2) “the criminal proceedings terminated in the plaintiff's favor.” Durham, 690 F.3d at 188 (internal citations omitted). As noted above, the criminal charges against Plaintiff are still pending, such that Plaintiff cannot show that the criminal proceedings terminated in his favor and thus he fails to state a claim for malicious prosecution. Additionally, Heck requires that prior to bringing a § 1983 claim for monetary damages that necessarily implies the invalidity of a prior conviction, such as malicious prosecution claim, a plaintiff must demonstrate that he obtained a favorable termination of the underlying criminal prosecution. Wilson v. Johnson, 535 F.3d 262, 265 (4th Cir. 2008).
A termination in Plaintiff's favor is one where “the criminal prosecution ended without a conviction.” Thompson v. Clark, 142 S.Ct. 1332, 1341 (2022).
Plaintiff also makes conclusory allegations of “excessive force” and “cruel and unusual punishment” merely because he is detained, but has not alleged that Defendant Prino (or any of the other Defendants) used excessive force against him during his arrest or otherwise subjected him to cruel and unusual punishment. He also has not alleged that Defendant Prino, or any of the other named Defendants, has been involved in any incidents of excessive force at the GCDC or has subjected him to cruel and unusual punishment as to his conditions of confinement at the GCDC. Moreover, there is no indication that any of the Defendants (who do not work at the GCDC) are responsible for Plaintiff's conditions of confinement at the GCDC.
Excessive force claims by pretrial detainees, like Plaintiff here, are brought under the Due Process Clause of the Fourteenth Amendment. Coney v. Davis, 809 Fed.Appx. 158, 159 (4th Cir. 2020). For a pretrial detainee to succeed on an excessive force claim, he must show that the force “purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). This objective inquiry turns on the facts and circumstances of the individual case with a consideration of the “perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. at 397. A court may consider the following non-exclusive list of factors in determining whether the force used was objectively reasonable:
[1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiff's injury; [3] any effort made by the officer to temper or to limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting.Id. As the standard is objective reasonableness, a court is not concerned with the defendant's motivation or intent. Duff v. Potter, 665 Fed.Appx. 242, 244 (4th Cir. 2016).
The Fourteenth Amendment proscribes incarcerating a pretrial detainee in conditions that “amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Conditions constitute punishment when there is “an ‘expressed intent' to punish” or “a lack of a reasonable relationship ‘to a legitimate nonpunitive governmental objective, from which a punitive intent may be inferred.'” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (quoting Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)). Although such claims are analyzed under the Fourteenth Amendment, case law interpreting the standard of “deliberate indifference” under the Eighth Amendment is instructive. Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (“[E]ven though [the plaintiff's] claim arises under the Fourteenth Amendment, we have traditionally looked to Eighth Amendment precedents in considering a Fourteenth Amendment claim of deliberate indifference....”). “To demonstrate that conditions of confinement constitute cruel and unusual punishment, [an inmate] must (1) establish that prison officials acted with ‘deliberate indifference' and (2) prove extreme deprivations of basic human needs or ‘serious or significant' pain or injury.” Smith v. Ozmint, 578 F.3d 246, 255 (4th Cir. 2009) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). To show that the conditions deprived him of a basic human need, a plaintiff must allege officials failed to provide him with humane conditions of confinement, such as “adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
D. Defendant Richardson
Plaintiff appears to allege that Richardson violated his constitutional rights by maliciously prosecuting him. He also claims that Richardson submitted him to excessive force and cruel and unusual punishment because he was detained and remains detained. Additionally, he contends that Richardson violated his Fifth, Thirteenth, and Fourteenth Amendment claims because Plaintiff continues to be detained. See ECF No. 11 at 20-22, 28. However, these claims should be dismissed for the same reasons discussed above as to Defendant Prino.
Plaintiff cannot show that he was seized pursuant to legal process that was not supported by probable cause because he was indicted by the grand jury as to those charges. “[A]n indictment, ‘fair upon its face,' returned by a ‘properly constituted grand jury,' conclusively determines the existence of probable cause.” Durham, 690 F.3d at 189 (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also El Bey v. Brown, No. 3:20-cv-2077-JMC-SVH, 2020 WL 5948335, at *2 (D.S.C. June 29, 2020) (“A grand jury indictment is affirmative evidence of probable cause sufficient to defeat claims for malicious prosecution and false arrest under § 1983.”), report and recommendation adopted, 2020 WL 4038267 (D.S.C. July 17, 2020); Odom v. Roberts, No. CA 6:12-2452-TMC-JDA, 2012 WL 4061679 (D.S.C. Aug. 27, 2012), report and recommendation adopted, 2012 WL 4059916 (D.S.C. Sept. 14, 2012) (same); Provet v. S.C., No. 6:07-cv-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (explaining § 1983 claims of false arrest and malicious prosecution were precluded based on the filing of an indictment). As noted above, Plaintiff was indicted on the criminal charges for which he is currently detained.
Moreover, review of the Amended Complaint indicates that Defendant Richardson should be summarily dismissed as a party defendant because he is entitled to prosecutorial immunity. Prosecutors have absolute immunity from damages for activities performed as “an officer of the court” where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009). For example, when a prosecutor “prepares to initiate a judicial proceeding,” “appears in court to present evidence in support of a search warrant application,” or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial “motions” hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). Therefore, because Plaintiff is attempting to assert a claim against Defendant Richardson based on this defendant's participation in Plaintiff's criminal proceedings, his claim is barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”).
E. Defendant Sarratt
Plaintiff appears to allege that Defendant Sarratt failed to properly represent him in violation of his constitutional rights. See ECF No. 11 at 18-20, 24-26. However, Defendant Sarratt is subject to summary dismissal because he is not a state actor. Plaintiff has alleged no facts to indicate that Defendant Sarratt acted under color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk Cnty. v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) (“A lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.”); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir. 1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney).
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).
F. Defendant Dursse
Plaintiff appears to allege that Defendant Dursse never met him such that she must have improperly picked his picture out of the lineup. He also claims that she did not make a 911 call until twenty-five minutes after the alleged attack; reported she was assaulted by a guy named Latrone that was wearing a non-descript ball cap and a bright, neon green, long-sleeve construction shirt; and the photo of Plaintiff that was used in the lineup was four years old. See ECF No. 11 at 15. Plaintiff asserts that although Dursse picked his picture out of the photo lineup, she allegedly did not tell Prino that he was the guy named Latrone and did not mention the clothing he was allegedly wearing at the time of the alleged crimes. Plaintiff also contends that Dursse did not mention his “distinctive” facial features. Plaintiff appears to allege that the identification was a case of mistaken identity. Id. at 16.
However, Defendant Dursse, Plaintiff's accuser and alleged victim, is entitled to summary dismissal as to the asserted § 1983 claims because Plaintiff has not alleged any facts to indicate that this Defendant is a state actor. Because the United States Constitution regulates only the government, not private parties, a litigant asserting a § 1983 claim that his constitutional rights have been violated must first establish that the challenged conduct constitutes “state action.” See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,” and “the party charged with the [conduct] must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); see U.S. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir. 1991). Although a private individual or corporation can act under color of state law, his, her, or its actions must occur where the private individual or entity is “a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Plaintiff makes general claims that Dursse's actions were made in conjunction with the state and its officials (see ECF No. 11 at 17), but simply has not alleged sufficient facts to support such a claim.
Further, merely making a criminal complaint does not turn a private citizen into a state actor. See Dillberg v. Cty. of Kitsap, 76 Fed.Appx. 792, 797 (9th Cir. 2003) (stating a complaining witness is not a state actor amenable to suit pursuant to § 1983); see also Daniels v. Northwestern Hum. Servs., No. 20-1736, 2021 WL 4166285, at *2 (3d Cir. Sept. 14, 2021) (allegations that defendants' actions resulted in plaintiff being made to appear in court and being in state custody were insufficient to allege state action); LaConey v. Lott, No. CV 3:21-2740-CMC-PJG, 2022 WL 1057178, at *1, *4 (D.S.C. Mar. 4, 2022) (victim associated with one of plaintiff's criminal charges was not a state actor), report and recommendation adopted sub nom. LaConey v. Strickland, No. 3:21-CV-2740-CMC, 2022 WL 970095 (D.S.C. Mar. 31, 2022).
G. Seventh, Ninth, Tenth, and Thirteenth Amendment Claims
Additionally, Plaintiff fails to allege any facts to state any violation of his Seventh, Ninth, Tenth, or Thirteenth Amendment rights. Plaintiff cannot state a Seventh Amendment violation because the Seventh Amendment applies only to civil actions, not criminal proceedings. See U.S. Const. amend. VII (“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved”); Goode v. Foster, No. 96-1348, 1996 WL 633657, at *2 (D. Kan. Oct. 21, 1996).
It is the Sixth Amendment, incorporated as to the several states by the Fourteenth Amendment, that guarantees a defendant a right to a jury trial in a criminal proceeding. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
Plaintiff appears to be attempting to assert some type of argument that the supposed violation of some of his other rights violated the Ninth Amendment and that his Tenth Amendment rights were violated because some of the Defendants' took an oath to honor the constitution and uphold the law which Plaintiff believes they are not doing. See ECF No. 11-26. However, Plaintiff's reliance on the Ninth and Tenth Amendments is misplaced. See, e.g., Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (rejecting Navy civilian engineer's Ninth Amendment claim arising out of allegedly improper investigation and discharge), cert. denied, 503 U.S. 951 (1992); Stone v. City of Prescott, 173 F.3d 1172, 1175 (9th Cir. 1999) (“Plaintiffs cannot found a [§] 1983 claim on the Tenth Amendment because it is neither a source of federal authority nor a fount of individual constitutional rights.”); Dyson v. Le'Chris Health Sys., Inc., No. 4:13-CV-224-BO, 2015 WL 134360, at *3 (E.D. N.C. Jan. 9, 2015) (the Ninth Amendment provides “no independent constitutional protection ... which may support a § 1983 cause of action.” (citations omitted)).
The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend IX.
The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend X.
Plaintiff claims that his Thirteenth Amendment rights were violated by Defendant Richardson because he is still detained. See ECF No. 11 at 28. The Thirteenth Amendment declares that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the parties shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1. However, Plaintiff fails to allege facts to indicate that Richardson or any other Defendant required him to endure slavery or involuntary servitude “by the use or threatened use of physical or legal coercion.” United States v. Kozminski, 487 U.S. 931, 948 (1988); see also Crummie v. Robinson, No. 221CV00766MLGMGB, 2021 WL 10342365 (D.S.C. Nov. 19, 2021), report and recommendation adopted, No. 2:21-CV-00766-MGB, 2023 WL 2500285 (D.S.C. Mar. 14, 2023). None of Plaintiff's allegations suggest that any of the Defendants physically forced Plaintiff to work, or threatened him with violence if he did not, or otherwise subjected him to involuntary servitude.
The United States Court of Appeals for the Fourth Circuit has held that pretrial detainees may be required to conduct work consisting of the cleaning of detention center common areas, to meet “general housekeeping responsibilities,” without violating either the Thirteenth Amendment or the Fourteenth Amendment Due Process Clause's bar on “punishment of a pretrial detainee.” Hause v. Vaught, 993 F.2d 1079, 1085 (4th Cir. 1993); see also Newell v. Davis, 563 F.2d 123, 124 (4th Cir. 1977) (noting that a claim that the failure to include inmates who worked in a prison hospital facility in an incentive pay program violated the Thirteenth Amendment was “obviously without merit”); see also Baker v. Trinity Servs. Grp., No. CV TDC-19-3661, 2021 WL 75160, at *3 (D. Md. Jan. 8, 2021) (finding that requirement that detainee work in the detention center in the kitchen preparing and serving meals, seven days a week, with shifts of eight or nine hours, was permissible).
H. State Law Claims
To the extent that Plaintiff is attempting to assert claims under South Carolina law, such as claims for defamation or claims under the South Carolina Tort Claims Act, such claims should be dismissed. As Plaintiff fails to establish federal jurisdiction and fails to state any federal claim, only his state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States….” 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and Defendants are all citizens of South Carolina. See ECF No. 11 at 2-3.
Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367 ; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); 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”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action, without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
Plaintiffs attention is directed to the important notice on the following 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 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).