Opinion
C. A. 4:22-97-RBH-TER
03-03-2022
Johnny Lee Love, Jr.,, #1506 17731 0923, Plaintiff, v. J.T. Sarvis, C.D. Brigham, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pretrial detainee, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
On January 14, 2022, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 7). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 10); however, deficiencies continue, and the action is subject to summary dismissal.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 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) (internal quotation and citation omitted). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Under § 1983, a plaintiff must establish 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 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff alleges this is a § 1983 action under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (ECF No. 10 at 4). Plaintiff alleges the events occurred in December 2020 in Florence County. (ECF No. 10 at 5). Defendants named are two South Carolina Highway Patrol officers. (ECF No. 10 at 2-3). Plaintiff's allegations revolve around camera footage. Plaintiff alleges the footage misleads and is a fraudulent misrepresentation. (ECF No. 10 at 6). Plaintiff lists no injuries. (ECF No. 10 at 7). Plaintiff's request for relief is “tort claims act and state tort claims act and constitutional tort” and then asks for monetary damages for defamation and incarceration under false allegations.
As discussed below, Plaintiff has stated no plausible claims to support a federal cause of action under federal question jurisdiction. As to any liberally construed state law tort claims, those claims cannot establish jurisdiction in this action. Federal courts are courts of limited subject matter 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). District courts exercise two types of subject matter jurisdiction: federal question jurisdiction pursuant to 28 U.S.C. § 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. The diversity statute requires complete diversity of parties. Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). Here, Plaintiff and a defendant are alleged to be residents of South Carolina. Thus, there is no diversity jurisdiction under § 1332 here. Plaintiff may be able to pursue any state law tort claims alleged against defendants in state court. Further, this Court can decline to continue the action as to the pendent claims if “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); 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).
There is no cause of action for defamation under § 1983. Plaintiff's defamation claim does not implicate the violation of any federal right. A § 1983 action may not be “based alone on a violation of state law or on a state tort.” Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988). A state law claim “does not become a constitutional violation merely because the victim is a prisoner.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff's allegations concerning a purely state law claim fail to establish a claim for a violation of a federal right as required under § 1983. Wilson v. Ozmint, No. 3:10-cv-2887-RMG, 2011 WL 1336391, at *1-2 (D.S.C. Apr. 7, 2011). Allegations of defamation, slander, and libel fail to state a cognizable claim under § 1983. See DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 200-203 (1989). In absence of any plausible federal question claim, there is no basis for the exercise of supplemental jurisdiction. Garrett v. Aube, No. CV 8:18-1449-MGL-JDA, 2018 WL 3628848, at *2 (D.S.C. May 31, 2018), report and recommendation adopted, 2018 WL 3619823 (D.S.C. July 30, 2018). Plaintiff has failed to allege facts showing that his constitutional rights were violated as to this issue.
To the extent under a liberal construction Plaintiff is attempting to allege a false arrest claim, under § 1983, “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) (internal citations omitted). Public records appear to show Plaintiff was indicted on all charges and all charges remain pending arising from the December 2020 arrest. “[A]n indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012). Plaintiff's liberally construed false arrest claims are subject to summary dismissal.
To the extent under a liberal construction Plaintiff is attempting to allege a malicious prosecution claim, to state a malicious prosecution claim, Plaintiff must show at least, that “defendant[s] have seized [plaintiff] pursuant to legal process that was not supported by probable cause and that the criminal proceedings [have] terminated in [plaintiff's] favor.” Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)(internal citations and quotations omitted). The U.S. Supreme Court provided in Heck v. Humphrey, 512 U.S. 477 (1994) that until a conviction was set aside or charges finally dismissed without the possibility of revival, a § 1983 claim could not be pursued based on allegations of unlawful circumstances surrounding the criminal prosecution. See also Brooks v. City of Winston-Salem, N.C., 85 F.3d 178 (4th Cir. 1996). Under the favorable termination rule, the charges must be terminated “for reasons indicative of the innocence;” courts have held that an unexplained nolle prosequi or disposal of charges for reasons other than innocence do not satisfy the Heck “favorable termination” requirement. Restatement(Second) of Torts § 660 (1977); see also Tucker v. Duncan, 499 F.2d 963, 965 (4th Cir. 1974); Jackson v. Gable, 2006 WL 1487047, at *6 (D.S.C. May 25, 2006); Nicholas v. Wal-Mart Stores, Inc., 33 Fed.Appx. 61, 64-65 (D.S.C. 2002). While Wallace held that Heck no longer bars claims of false arrest by pretrial detainees, Heck is still applicable to claims of malicious prosecution. Wallace, 549 U.S. at 387 n.1, 390 n.2. Public records show charges against Plaintiff since 2020 are still pending and have not been favorably terminated; Plaintiff has not shown that all of the charges connected to his allegations have been favorably terminated in accordance with the above law. As such, his claims for malicious prosecution are subject to summary dismissal.
Based on the allegations presented by Plaintiff, Plaintiff has failed to state a claim upon which relief could be granted. Plaintiff failed to cure the deficiencies in the Complaint and was already given notice and opportunity to file an Amended Complaint and availed himself of the opportunity. Thus, Plaintiff's action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss the Amended Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed.Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend, filed an Amended Complaint, and has failed to cure deficiencies.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).