Opinion
C. A. 4:23-6959-JD-TER
03-12-2024
Curtis Dale Richardson,, a/k/a Curtis Richardson#269166, a/k/a Curtis D. Richardson, a/k/a Curtis Richardson #28507-171, Plaintiff, v. Kaitlin Cook, Horry County Solicitor, in her individual and official capacity, Loris Police Department, D. S. Wilkes, Pfc. Sauer, Horry County, South Carolina, City of Loris, JR Long Detention Center Medical Staff Supervis Horry County Sheriff's Department, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a former 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).
Plaintiff's 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
Plaintiff's action is subject to dismissal for failure to state a claim upon which relief can be granted. Plaintiff was previously notified of deficiencies in his original complaint and given an opportunity to amend the complaint. Plaintiff availed himself of that opportunity and filed an Amended Complaint. The Amended Complaint continues with deficiencies and is subject to summary dismissal. (ECF No. 14).
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 he was unlawfully imprisoned for 66 days and deprived of property. (ECF No. 14 at 5).
Plaintiff alleges there are four or five defendants at times but in fact lists multiple defendants on each numbered line. Liberally construed, there are nine defendants.
First, Defendant Cook is a solicitor. Plaintiff alleges he was held by the solicitor in jail for 66 days without bond and was released by the judge after Plaintiff alleges the solicitor “admitted she held me in jail for 66 days without legal justification.” (ECF No. 14 at 7). Plaintiff sues a solicitor involved in prosecuting Plaintiff. Prosecutors are protected by immunity for activities in or connected with judicial proceedings. Van de Kamp v. Goldstein, 555 U.S. 335, 338-44 (2009); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir.2000). Prosecutors, when acting within the scope of their duties, have absolute immunity from damages liability under § 1983 for alleged civil rights violations committed in the course of proceedings that are “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Defendant Cook is subject to summary dismissal.
Plaintiff sues D.S. Wilkes who Plaintiff alleges is a defendant in a separate action No. 4:16-cv-835-JD and he has not received payment of damages from her. That court action has been closed since 2022 and is unrelated to Plaintiff's current arrest allegations. The Fourth Circuit Court of Appeals denied Plaintiff's appeal of a petition for mandamus in that action. Plaintiff received a hearing in that action after the writ of execution returned unsatisfied, questioned Wilkes regarding assets to satisfy that judgment, and “[t]he supplementary proceedings as requested by Plaintiff have failed to identify any non-exempt assets available to satisfy the judgment against Wilkes.” No. 4:16-835-JD(ECF 196). Plaintiff fails to state a claim upon which relief could be granted as to D.S. Wilkes.
Plaintiff sues Defendant Sauer for taking a vehicle. (ECF No. 14 at 9). Deprivations of property are not actionable under § 1983 and do not offend due process when adequate postdeprivation state remedies are available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff has remedies under South Carolina law to obtain relief for the alleged taking of his personal property, by proceeding pursuant to the South Carolina Tort Claims Act, SC Code Ann. § 1578-10 et seq. See Mora v. City of Gaithersburg, 519 F.3d 216, 231 (4th Cir.2008) (State courts are available for property claims and the State process is constitutionally adequate). Plaintiff fails to state a claim for violation of his constitutional rights based on the alleged deprivation of his property.
Plaintiff sues Horry County and South Carolina as connected to his first claim, which is the same as the claim against the solicitor. (ECF No. 14 at 7). Plaintiff seeks money damages only as to these Defendants. (ECF No. 14 at 11). Such § 1983 action against a state is subject to summary dismissal. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”). A state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case. S.C. Code Ann. § 15-78-20(e). Further, “Count[ies] ... [are] protected by the Eleventh Amendment, which bars suits by citizens against non-consenting states brought either in state or federal court.” Blakely v. Mayor of Greenville Cty., No. 6:12-02587-MGL, 2012 WL 6675095, at *2 (D.S.C. Sept. 25, 2012), report and recommendation adopted, 2012 WL 6675093 (D.S.C. Dec. 21, 2012)(citing Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890)). Defendants Horry County and South Carolina are subject to summary dismissal. Plaintiff also sues the Horry County Sheriff's Department, and such is considered a state agency subject to immunity and thus summary dismissal as well. See Williams v. Dorchester Cty. Det. Ctr., 987 F.Supp.2d 690, 694 (D.S.C. 2013); Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988).
Plaintiff sues a city and city police department, Defendant City of Loris and Loris Police Department concerning the specific actions of Defendant Sauer in having a vehicle towed. (ECF No. 14 at 9). There are no allegations as to these specific defendants. Plaintiff's Complaint does not allege an unconstitutional policy, practice, or custom by Defendant City or Police Department. A municipality or other local government entity may only be held liable under 42 U.S.C. § 1983 “where the constitutionally offensive actions of [ ] employees are taken in furtherance of some municipal ‘policy or custom.' ” See Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Wolf v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 321 (4th Cir. 2009) (“A county may be found liable under 42 U.S.C. § 1983 [but] only ‘when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury.' ”) (citing Monell, 436 U.S. at 694). Plaintiff fails to identify any governmental policy or custom that caused his constitutional rights to be allegedly violated. Evidence of a single incident is insufficient to give rise to municipal liability under § 1983. S. Holdings, Inc. v. Horry Cnty., S.C., No. 4:02-1859-RBH, 2007 WL 896111, at *2 (D.S.C. Mar. 21, 2007). At most, Plaintiff attributes to Police Department, in a conclusory fashion, the alleged wrongful acts of one of its officers which does not state a claim as to the Police Department. See Hensley v. Horry Cnty. Police Dep't, No. CV 4:19-602-RBH-KDW, 2019 WL 9667697, at *3 (D.S.C. Dec. 17, 2019), report and recommendation adopted, 2020 WL 2537452 (D.S.C. May 19, 2020). Further, Loris Police Department is subject to summary dismissal because it is not a person amendable to suit for § 1983 purposes. See von Fox v. Charleston City Police Dep't, No. 2:16-CV-98-RMG-MGB, 2016 WL 8677189, at *4 (D.S.C. Feb. 12, 2016), report and recommendation adopted sub nom., 2016 WL 927154 (D.S.C. Mar. 7, 2016), dismissed sub nom. 668 Fed.Appx. 442 (4th Cir. 2016) (collecting cases summarily dismissing police departments). Defendant City of Loris is subject to summary dismissal as Plaintiff has failed to state a claim upon which relief could be granted against this defendant.
Plaintiff alleges a new claim not contained in the original complaint as to Brown, a detainee who allegedly did not receive Covid-19 medical treatment in 2022. Plaintiff asserts he is Brown's legally appointed representative; nonetheless, Plaintiff may not represent others pro se. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[T]he competence of a layman representing himself [is] clearly too limited to allow him to risk the rights of others.”); see also Hummer v. Dalton, 657 F.2d 621, 625-26 (4th Cir. 1981). Plaintiff later alleges under injuries that Brown is dead. (ECF No. 14 at 11). Plaintiff's “statement of claim vs defendant #5” is subject to summary dismissal. Further, “Defendant #5” was “detention center medical staff supervisor, Horry County, and Horry County Sheriff's Department.” (ECF No. 14 at 4). This only bars Plaintiff, not Brown's estate's future filing by an attorney. An estate can not be represented pro se, except in a very limited circumstance inapplicable here. Witherspoon v. Jeffords Agency, Inc., 88 Fed.Appx. 659, 659 (4th Cir. 2004); Chapman v. Wal-Mart Stores E., LP, 2018 WL 2144489, at *2 (E.D. Va. May 9, 2018).
Plaintiff has failed to state a claim upon which relief can be granted as to all the named Defendants.
RECOMMENDATION
It is recommended that the District Court dismiss Plaintiff's claims as to himself under § 1983 with prejudice under § 1915(e) and without issuance and service of process.
It is recommended that this action be dismissed without further opportunity to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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).