Opinion
C/A No. 8:19-cv-1512-TMC-JDA
06-04-2019
John L. Mills, Plaintiff, v. Magistrate Judge Bristow Marchant, Defendant.
REPORT AND RECOMMENDATION
John L. Mills ("Plaintiff"), proceeding pro se and in forma pauperis, brings this civil action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397 (1971), against United States Magistrate Judge Bristow Marchant ("Judge Marchant"), alleging violations of his constitutional rights. Plaintiff is an inmate in the South Carolina Department of Corrections and is currently incarcerated at the Lieber Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned Magistrate Judge is authorized to review such actions for relief and submit findings and recommendations to the District Judge. For the reasons below, the Complaint is subject to summary dismissal with prejudice and without issuance and service of process. Further, the dismissal should be counted as a strike under 28 U.S.C. § 1915(g).
In Bivens, the Supreme Court established a direct cause of action under the United States Constitution against federal officials for the violation of federal constitutional rights. 403 U.S. at 397. A Bivens action is analogous to a claim under 42 U.S.C. § 1983. However, federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law as required by that section. The law developed under the two doctrines applies equally to the two types of cases, regardless of whether the action is a Bivens action or a § 1983 action. See Wilson v. Layne, 526 U.S. 603, 609 (1999).
BACKGROUND
According to the Complaint, Judge Marchant violated Plaintiff's constitutional rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution. [Doc. 1 at 6.] Plaintiff alleges that he was convicted of murder, after which he received an "overwhelming amount of exculpatory evidence." [Id. at 9.] In February 2008, Plaintiff filed an action pursuant to 42 U.S.C. § 1983 against several judicial employees and county and city law enforcement agents, seeking money damages for claims apparently related to his criminal conviction. [Id.] Judge Marchant was assigned to handle the pretrial proceedings of that case, which can be found at case number 0:08-cv-00069-PMD-BM. [Id.] Plaintiff contends the § 1983 action involved evidence from two unrelated criminal actions for which he had been found guilty: one for armed robbery at criminal action number 2004-GS-23-7756, and one for murder at criminal action number 2005-GS-23-4646. [Id. at 10.] According to Plaintiff, both of those cases were in their direct appeal stages in the South Carolina Court of Appeals when Plaintiff commenced his § 1983 action. [Id.] Plaintiff contends that Judge Marchant issued a Report and Recommendation in the action at case number 0:08-cv-00069-PMD-BM, in which he misinterpreted Plaintiff's evidence. [Id. at 10-11.] Plaintiff contends that Judge Marchant committed grave and serious error and Plaintiff has attempted to have Judge Marchant correct that error multiple times, but to no avail. [Id. at 11.] Plaintiff's § 1983 action at case number 0:08-cv-00069-PMD-BM was dismissed without prejudice, and Plaintiff attempted to re-file the case under the same case number, but his motion was denied. [Id. at 11-12.] Plaintiff contends that, because Judge Marchant's Report and Recommendation was derived from "his mistakenly [ ] combining two cases which the Court records . . . incontrovertibly show to be independent of each other," Plaintiff has been denied "the fair opportunity to be heard in a meaningful sense." [Id. at 12.] According to Plaintiff, Judge Marchant's deliberate failure to properly resolve the matter in Plaintiff's favor shows that Judge Marchant's Report and Recommendation was derived from his own personal wishes or prejudices in violation of the Fifth and Fourteenth Amendments. [Id.] Plaintiff contends that, but for Judge Marchant's Report and Recommendation denying him relief, he would have recovered damages in the amount of twenty-five million dollars. [Id. at 13.] Plaintiff now requests "the relief required by law." [Id. at 15.]
The Court takes judicial notice of Plaintiff's prior § 1983 action at case number 0:08-cv-00069-PMD-BM. Judge Marchant issued a Report and Recommendation in that case on February 13, 2018, recommending that the case be dismissed without prejudice and without issuance and service of process. Mills v. Greenville Cty., No. 0:08-cv-00069-PMD-BM, Doc. 20 at *10 (D.S.C. Feb. 13, 2008). Among other things, Judge Marchant concluded that Plaintiff's claims in that case were barred by Heck v. Humphrey, 512 U.S. 477 (1994), that the Court should also abstain from hearing the claims under Younger v. Harris, 401 U.S. 37, 43-44 (1971), and that the Defendants named in the action were either entitled to immunity, not state actors, or not persons subject to suit under § 1983, and therefore were each entitled to dismissal. [Id. at 5-10.] Plaintiff filed objections to Judge Marchant's Report and Recommendation, but, on April 15, 2008, the Honorable Patrick Michael Duffy overruled the objections and adopted the Report and Recommendation, dismissing the action without prejudice. Mills v. Greenville Cty., No. 0:08-cv-00069-PMD-BM, Doc. 33 at *10 (D.S.C. Apr. 15, 2008). The Court notes that, while Plaintiff unsuccessfully filed a motion to reopen case number 0:08-cv-69-PMD-BM based on Judge Marchant's alleged error, he did not file an appeal or otherwise attempt to correct the alleged error.
See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (Courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'").
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. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and he "seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would still be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if a court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct a plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
This action should be dismissed with prejudice.
This action should be dismissed with prejudice because it is frivolous as it is barred by the doctrine of judicial immunity. Judge Marchant, who is the only named Defendant in this action, is a United States Magistrate Judge. The law is well settled that judges have absolute immunity from claims for damages arising out of their judicial actions unless they have acted in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that, even if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Whether an act is judicial or non-judicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13. Immunity presents a threshold question. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Absolute immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).
Here, Plaintiff alleges that Judge Marchant violated his constitutional rights by committing error in a Report and Recommendation issued in case number 0:08-cv-00069-PMD-BM. However, Plaintiff is complaining about Judge Marchant's alleged erroneous judicial actions entered in his prior case and he does not mention any pertinent nonjudicial actions. Thus, because all of the alleged misconduct of Judge Marchant arose out of his judicial actions, judicial immunity squarely applies and should bar this lawsuit against him. As noted above, judicial immunity protects a judge from liability based on even erroneous judicial acts. Plaintiff's claims against Judge Marchant should be dismissed, with prejudice, as frivolous pursuant to 28 U.S.C. § 1915(d) because they are barred by absolute judicial immunity. See Bey v. Jefferson, No. 2:17-cv-1007-RMG-MGB, 2017 WL 9250348, at *8 (D.S.C. Apr. 24, 2017) (recommending summary dismissal of case against a judge, who was entitled to immunity, with prejudice as frivolous), Report and recommendation adopted by 2017 WL 1956979 (D.S.C. May 11, 2017); Rivers v. Goodstein, No. 2:18-cv-2032-RMG-MGB, 2018 WL 4658487, at *8 (D.S.C. Sept. 7, 2018) (recommending dismissal with prejudice because case was frivolous as the defendant judge would have absolute judicial immunity for her judicial actions), Report and Recommendation adopted by 2018 WL 4656239 (D.S.C. Sept. 27, 2018); Jackson v. Hargadon, No. PJM-12-2622, 2012 WL 8466129, at *2 (D. Md. Sept. 11, 2012) ("Because judicial immunity precludes Plaintiff's recovery against [a judge], sua sponte dismissal of Plaintiff's claim as legally frivolous is appropriate."), aff'd, 510 F. App'x 270 (4th Cir. 2013); Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (dismissing claims as frivolous against a judge based on judicial immunity), aff'd, 36 F.3d 1091 (4th Cir. 1994).
If Plaintiff believes that Judge Marchant committed error in his prior cases, the proper remedy would be to appeal the ruling to the United States District Judge and/or file a direct appeal with the United States Court of Appeals for the Fourth Circuit. Abebe v. Seymour, No. 3:12-377-JFA-KDW, 2012 WL 1130667, at *2 (D.S.C. Apr. 4, 2012), aff'd 479 F. App'x 464 (4th Cir. 2012). However, because Plaintiff did not pursue such an appeal, and chose instead to file this private Bivens action, judicial immunity bars his suit. Id.
The Court further notes that the present action is nearly identical to a prior action filed with this Court against Judge Marchant, in which Plaintiff asserted the same allegations. See Mills v. U.S. Magistrate Judge Bristow Marchant, No. 8:14-cv-3069-TMC, Doc. 1 (D.S.C. Aug. 1, 2014). That case was summarily dismissed with prejudice based on judicial immunity. Accordingly, the undersigned finds that the present case is malicious within the meaning of 28 U.S.C. 1915(g). Under certain circumstances, a court may dismiss a "malicious" civil action. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b). Repetitive and duplicative filings may rise to the level of maliciousness. See Jones v. South Carolina, No. 3:02-cv-157-24BC, 2002 WL 32334394, at *1 (D.S.C. Sept. 17, 2002) ("Plaintiff's history of repetitious and duplicative filings indicates an intent to abuse the court and the in forma pauperis process."). Plaintiff's claims in the instant lawsuit are virtually identical to his previous lawsuit against Judge Marchant. In both cases, Plaintiff has alleged that Judge Marchant's erroneous rulings in another case violated his constitutional rights. Accordingly, the instant lawsuit is repetitive and should be considered a malicious civil action and dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). See Payne v. Lucas, No. 6:12-cv-1347-DCN-KFM, 2012 WL 6761515, at *3 (D.S.C. Nov. 26, 2012), Report and Recommendation adopted by 2013 WL 41000 (D.S.C. Jan. 3, 2013) (dismissing action as frivolous and malicious because the plaintiff had filed prior duplicative actions and deeming the dismissal a "strike" pursuant to 28 U.S.C. § 1915(g)).
Plaintiff has been specifically advised of the doctrine of judicial immunity in his prior action against Judge Marchant. See Mills v. U.S. Magistrate Judge Bristow Marchant, No. 8:14-cv-3069-TMC-BM, Doc. 16 at *5 (D.S.C. Aug. 15, 2014). As a result, Plaintiff should be held responsible for knowing that Judge Marchant cannot be sued because of his judicial rulings, and the Complaint "knowingly filed in this case against an obviously immune Defendant should be summarily dismissed as frivolous." Abebe v. Seymour, No. 3:12-cv-377-JFA-KDW, 2012 WL 1130660, at *3 (D.S.C. Feb. 23, 2012), Report and Recommendation adopted by 2012 WL 1130667 (D.S.C. Apr. 4, 2012).
The dismissal should be deemed a strike.
As noted, the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e ("PLRA"), requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify "cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). Further, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). The "three strikes" rule, codified at 28 U.S.C. § 1915(g), provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). Thus, "[w]hen a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the Act's 'three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees." McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)). The PLRA's "three strikes" rule was enacted to bar prisoners, such as Plaintiff, who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. Id. To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. Nevertheless, all civil lawsuits brought by prisoners seeking relief from a governmental entity, officer, or employee are subject to screening pursuant to 28 U.S.C. § 1915A, even those lawsuits where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).
In light of the foregoing, because this case should be dismissed with prejudice as it is frivolous and malicious and because Plaintiff has filed an identical case that was also dismissed with prejudice for the same reasons identified herein, the undersigned recommends that this case be deemed a "strike" for purposes of the PLRA's "three strike rule." See, e.g., Bey, 2017 WL 1956979, at *2 (finding the complaint was frivolous for, among other things, asserting claims against a judge who was entitled to immunity, and therefore concluding the dismissal counted as a strike under 28 U.S.C. § 1915(g)); Jackson, 2012 WL 8466129, at *2 (deeming action a strike because it was dismissed as frivolous where plaintiff sued a judge who was entitled to judicial immunity).
RECOMMENDATION
In light of the forgoing, it is recommended that this action be dismissed with prejudice and without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and 28 U.S.C. § 1915A (explaining that, as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). It is further recommended that the dismissal be counted as a strike pursuant to 28 U.S.C. § 1915(g) because this action is frivolous and malicious.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge June 4, 2019
Greenville, South Carolina
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).