Opinion
Civil Action 2:23-00759
07-18-2024
SHELBY DEAN SKAGGS, Plaintiff, v. JAY M. HOKE, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
Omar J. Aboulhosn United States Magistrate Judge
Pending before the Court are Plaintiff's Applications to Proceed Without Prepayment of Fees and Costs (Document Nos. 1 and 6), filed on November 27, 2023, and January 17, 2024. Having examined Plaintiff's Complaint and Supplement, the undersigned has concluded that Plaintiff fails to state a claim for which relief can be granted in this matter and therefore respectfully recommends that Plaintiff's Applications to Proceed Without Prepayment of Fees be denied and this matter be dismissed.
FACTUAL BACKGROUND
On November 27, 2023, Plaintiff, acting pro se, filed his Application to Proceed Without Prepayment of Fees and Costs and Complaint claiming entitlement to relief under 42 U.S.C. §1983. (Document Nos. 1 and 2.) In his Complaint, Plaintiff names the following as Defendants: (1) Jay M. Hoke, Circuit Court Judge of Lincoln County; (2) Victor Navy, Defense Attorney; (3) Jackie Stevens, Prosecutor; and (4) T.M. Divita, West Virginia State Trooper Investigator. (Document No. 2, pp. 1 and 4.) Plaintiff appears to allege that his constitutional rights were violated “just to get a conviction.” (Id., p. 4.) In support, Plaintiff states as follows:
Because Plaintiff is acting pro se, the documents which he has filed in this case are held to a less stringent standard than if they were prepared by a lawyer and therefore, they are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Indicted under the January Term 2010 of Grand Jury, [but] not accused until May 2010. At trial in April 2012, Judge Hoke claimed I was indicated in September 2010. I only have one indictment, January 2010; no indictment on record for September 2010. At trial, Defense Attorney made opening statement [that] I just learned I can't see. Judge Hoke let my trial go on. Jury asked to see document used on witness stand, [but] Judge Hoke refused. Judge or Prosecutor changed Code to enhance my sentence from 61-8b-7 to 61-8b-7(c). Also, no Code for 61-80-59(A) for Count 7 of charges. I had trial in Judge Hoke's court in early 2000, over right of way. To this day there has been no decision on it. I filed a habeas in 2016, to date no omnibus discovery hearing. Judge Hoke appoints a person an attorney, but doesn't give a name so [there is] no way to contact the attorney.(Id.) Plaintiff requests monetary relief. (Id.)
On January 17, 2024, Plaintiff filed a second Application to Proceed Without Prepayment of Fess and Costs (Document No. 6), a duplicate copy of his Complaint (Document No. 7), and a Supplement to his Complaint (Document No. 8). In his Supplement to the Complaint, Plaintiff asserts additional alleges against the above named Defendants and names additional Defendants. (Document No. 8.) Specifically, Plaintiff names the following as additional Defendants: (1) Jeffrey Bowen, Direct Appeal Attorney; (2) Dean Williams, Habeas Attorney; (3) Robby J. Aliff, Lawyer Disciplinary Board; (4) Adrian Hoosier, Appeal and Habeas Lawyer; (5) Dan Corey, Habeas Attorney; (6) Elliott Workman, Habeas Attorney; (7) Peggy Spalding, Clerk of the Supreme Court of Appeals of West Virginia; (8) Women's and Childrens Hospital; (9) Dr. Joan Phillips; (10) Maureen Runyon, Interviewer of Victim; (11) Jane or John Doe, Employee at Women's and Childrens Hospital in Charge of DVD recordings; and (12) Jane Doe, Employee at Women's and Childrens Hospital that conducted physical examine of the victim. (Id., pp. 9 - 11.) Concerning Defendant Navy, Plaintiff alleges that Defendant Navy acted ineffectively by failing to do the following: (1) Conduct an adequate investigation; (2) Ensure Plaintiff received a speedy trial; (3) Explain Plaintiff's sentencing exposure; (4) Request a continuance due to Defendant Navy's medical issues; (5) Conduct adequate discovery; (6) Object to Dr. Phillips' report; and (7) Subpoena witnesses. (Id., pp. 1 - 3.) Regarding Defendant Stevens, Plaintiff alleges that Defendant Stevens violated his constitutional rights during the underlying criminal proceeding based on the following: (1) Signing the January 2010 Indictment; (2) Improperly charging Plaintiff in Count Seven with a violation of West Virginia Code § 61-8d-59(a); (3) Failing to “produce omnibus discovery motion;” (4) “Lying to the jury about the victim not lying about important things;” and (5) Seeking an indictment of Plaintiff who is innocent of the charges. (Id., pp. 4 - 6.) Concerning Defendant Divita, Plaintiff alleges that Defendant Divita violated his constitutional rights based on the following: (1) Never filing a “Complaint Form;” (2) Failing to take notes and conducting an adequate investigation; and (3) Charging Plaintiff when she knew the victim had not been assaulted. (Id., pp. 7 - 8.)
THE STANDARD
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to screen each case in which a plaintiff seeks to proceed in forma pauperis, and must dismiss the case if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. This screening is done prior to consideration of an Application to Proceed Without Prepayment of Fees and Costs, and notwithstanding the payment of any filing fee. On screening, the Court must recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous” complaint is one which is based upon an indisputably meritless legal theory. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A “frivolous” claim lacks “an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id., 490 U.S. at 327 - 328, 109 S.Ct. at 1833. A complaint therefore fails to state a claim upon which relief can be granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. With these standards in mind, the Court will assess Plaintiff's allegations in view of applicable law.
This Court is required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal construction, however, “does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the “courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Finally, 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 claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va. Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015).
ANALYSIS
“[F]ederal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). Title 42 U.S.C. § 1983 provides a remedy for violations of all “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” Thus, Section 1983 provides a “broad remedy for violations of federally protected civil rights.” Monell v. Dep't of Social Services, 436 U.S. 658, 685, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Generally speaking, to state and prevail upon a claim under 42 U.S.C. § 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived him of an alleged right, privilege or immunity protected by the Constitution or laws of the United States.
1. Insufficient Allegations:
The undersigned finds that Plaintiff has stated insufficient allegations against the following Defendants: (1) Peggy Spalding; (2) Robby J. Aliff; (3) Women's and Children's Hospital; (4) Jane or John Doe; and (5) Jane Doe. Concerning Defendant Spalding, Plaintiff merely complains that she “wrote a letter to Attorney H.C. Woods saying I could not file an appeal until I had a Final Sentencing Order or other order.” (Id., p. 10.) Regarding Defendant Aliff, Plaintiff merely asserts that he “closed my complaint on Victor Navy for trying case blind.” (Id., p. 9.) Concerning the Women's and Children's Hospital, Plaintiff claims that it failed to “have DVD in working order and checked before examination.” (Id., p. 10.) Concerning Defendant Jane Doe or John Doe, Plaintiff states he or she was “in charge of seeing the DVD recording was working properly.” (Id., p. 11.) Concerning Defendant Jane Doe, Plaintiff asserts she was the one “who did the actual physical exam of victim.” (Id., p. 11.) Although this Court must liberally construe pro se filings, the Court is not required to make arguments on behalf of Plaintiff. Plaintiff must provide at least some recognizable legal theory in support of his claim. See Minone v. McGrath, 435 F.Supp.2d 266 (S.D.N.Y. 2006)(“Although the pleading requirements are construed liberally, ‘[l]iberal construction has its limits, for the pleading must at least set forth sufficient information for the court to determine whether some recognized legal theory exists upon which relief could be accorded the pleader.”) Plaintiff, however, completely fails to allege or indicate what constitutional, statutory, or common law rights he believes these Defendants violated. Plaintiff's Complaint and Supplement are completely void of any factual allegations as to how these Defendants may have violated Plaintiff's constitutional or statutory rights. Although this Court must liberally construe Plaintiff's allegations, the Court “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011); also see Giarratano v. Johnson, 521 F.3d 298, 304, n. 5. (4thCir. 2008). A party must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corporation v. Twombly, 550 U.S. 554, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[N]aked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955)(internal quotations omitted). In the instant case, Plaintiff has presented a naked assertion that his “rights” were violated “just to get a conviction.” (Document No. 2, p. 5.) Liberally construing Plaintiff's Complaint and Supplement, Plaintiff clearly fails to allege facts that set forth a claim cognizable against the above named Defendants. Accordingly, the undersigned respectfully recommends that Plaintiff's claim against Defendants Spalding, Aliff, Women's and Children's Hospital, Jane or John Doe, and Jane Doe be dismissed.
2. Defendant Divita:
A plaintiff must file a Section 1983 action within the prescribed time period. Because there is no federally prescribed statute of limitation, Courts look to and apply their respective State's statutes of limitation. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The Fourth Circuit has recognized that “in the absence of any state statute of limitations specifically applicable to suits to redress a violation of civil rights, the West Virginia limitation on personal injury actions applies.” McCausland v. Mason County Bd. of Ed., 649 F.2d 278 (4th Cir. 1981), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). Under West Virginia law, the applicable period of limitation upon a plaintiff's right to file a personal injury is two-years from the time the cause of action accrued. See W.Va. Code § 55-2-12(b). The applicable period of limitations for a claim of false imprisonment is one-year. Wilt v. State Auto. Mut. Ins. Co., 203 W.Va. 165, 506 S.E.2d 608, 613 (1998); also see Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 244 S.E.2d 321 (1978). Although the limitation period is borrowed from State law, the question of when a cause of action accrues is answered according to federal law. See Brooks v. City of Winston-Salem, NC, 85 F.3d 178, 181 (4th Cir. 1996). Under federal law, a cause of action accrues “when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, MD House of Corr., 64 F.3d 951, 955 (4th Cir. 1995)(en banc), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273, 134 L.Ed.2d 219 (1996)(citing United States v. Kubrick, 444 U.S. 111, 122-24, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). “Accrual of a claim does not ‘await awareness by the plaintiff that his injury was negligently inflicted.'” Nasim, 64 F.3d at 955 (quoting Childers Oil Co., Inc. v. Exxon Corp., 960 F.2d 1265, 1272 (4th Cir. 1992)). Accordingly, for a Section 1983 action, “a cause of action accrues either when the plaintiff has knowledge of his claim or when he is put on notice -- e.g., by the knowledge of the fact of injury and who caused it -- to make reasonable inquiry and that inquiry would reveal the existence of a colorable claim.” Nasim, 64 F.3d at 955. To determine when a plaintiff possessed knowledge of his injury, the Court “may look to the common-law cause of action most closely analogous to the constitutional right at stake as an ‘appropriate starting point.'” Brooks, 85 F.3d at 181 (citations omitted).
West Virginia Code § 55-2-12 provides as follows:
Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.
Liberally construing Plaintiff's Complaint and Supplement, Plaintiff appears to allege that he was falsely arrested and falsely imprisoned based upon insufficient evidence provided by Defendant Divita. To the extent Plaintiff is asserting such a claim, the undersigned will briefly consider the timeliness. See Nasim, 64 F.3d at 953-54(finding that the statute of limitations may be addressed sua sponte when such a defense appears on the face of the complaint filed in forma pauperis pursuant to 28 U.S.C. § 1915). A Section 1983 claim for false arrest and false imprisonment accrues when the claimant is detained pursuant to legal process. Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1100, 166 L.Ed.2d 973 (2007)(holding “that the statute of limitations upon a § 1983 claim seeking damages for false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.”); Owens v. Blatimore City States Attorneys Office, 767 F.3d 379, 389 (4th Cir. 2014)(explaining that “the statute of limitations for false imprisonment does not begin to run at the outset of a Plaintiff's false imprisonment; rather, limitations begin to run only at the end of a Plaintiff's false imprisonment.”); Magwood v. Streetman, 2016 WL 5334678, * 5(D.S.C. Aug. 15, 2016)(explaining that false imprisonment consists of detention without legal process, which ends once the victim becomes held pursuant to such process); Smith v. Allred, 2016 WL 1274593, * 8 (S.D.W.Va. March 31, 2016)(J. Copenhaver)([S]ection 1983 claims for wrongful arrest do not accrue until the individual is released or his detention becomes lawful.”). A plaintiff's claim for false arrest or false imprisonment ceases once plaintiff is detained pursuant to legal process, and at this point, plaintiff's claim becomes a claim of malicious prosecution. See Wallace, 549 U.S. at 388-89, 127 S.Ct. at 1091(“Reflective of the fact that false imprisonment consists of detention without legal process, a false imprisonment ends once the victim becomes held pursuant to such process - -when, for example, he is bound over by a magistrate or arraigned on charges . . . Thereafter, unlawful detention forms part of the damages for the entirely distinct tort of malicious prosecution, which remedies detention accompanied, not by absence of legal process, but by wrongful institution of legal process.”)(internal citations omitted). Id. at 1097; see also Brummett v. Camble, 946 F.2d 1178, 1184 (5th Cir. 1991), cert. denied, 504 U.S. 965, 112 S.Ct. 2323, 119 L.Ed.2d 241 (1992)(Listing federal cases adopting this common law rule); Albright v. Oliver, 510 U.S. 266, 280, 114 S.Ct. 807, 816, 127 L.Ed.2d 114 (1994)(J. Ginsburg, concurring)(Stating that the limitation period for a malicious prosecution claim should begin to run upon dismissal of the criminal charges, not at the start of the state procedures.).
The Supreme Court noted that “[f]alse arrest and false imprisonment overlap; the former is a species of the later.” Wallace, 127 S.Ct. at 1095.
A Section 1983 claim for malicious prosecution accrues when the prosecution has terminated in Plaintiff's favor. It is of significance to note here for purposes of accrual the distinction between a claim for false arrest or imprisonment and malicious prosecution. Generally, a plaintiff knows of his injuries in a cause of action for false arrest without probable cause on the date of his arrest. Thus, a cause of action for false arrest will accrue at the time of arrest. See Covington v. City of New York, 171 F.3d 117 (2d Cir.), cert. denied, 528 U.S. 946, 120 S.Ct. 363, 145 L.Ed.2d 284 (1999); Rose v. Bartle, 871 F.2d 331, 348-49, 351 (3d Cir. 1989). A plaintiff does not know of his injuries in a cause of action for malicious prosecution, however, until the charges are disposed of in his favor. In the instant case, Plaintiff has failed to state a claim of malicious prosecution because he has not alleged that criminal proceeding terminated in his favor.
Generally, an individual's arraignment date is the date they are detained pursuant to legal process. The record before the Court, however, does not indicate the date of Plaintiff's arraignment. The undersigned, however, takes judicial notice that the Circuit Court of Lincoln County entered its Sentencing Order on April 11, 2014. See State v. Shelby S., 2016 WL 2978567 (W.Va. May 23, 2016). Even liberally construing the record and assuming Plaintiff was not detained pursuant to legal process until his sentencing date on April 11, 2014, this claim would be untimely. Applying the West Virginia one-year statute of limitation together with the federal standard of accrual, the undersigned finds that Plaintiff's cause of action for false arrest expired at the latest on April 11, 2015. Plaintiff initiated the above action on November 27, 2023, nearly 8 years and 7 months after the limitations period expired. Accordingly, Plaintiff's Complaint and Supplement should be dismissed because the one-year statute of limitations has run to the extent Plaintiff is asserting claims of false arrest and false imprisonment.
3. Judicial Immunity:
“Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 80 U.S. 335,S.Ct., 20 L.Ed. 646 (1872).” Imbler v. Patchman, 424 U.S. 409, 419, 96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976). Judicial immunity does not attach when a judicial officer acts in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987). The doctrine of judicial immunity, however, “attaches even if the act in question was in excess of [the judge's] authority.” Jackson v. Houck, 181 Fed. App'x 372, 372 (4th Cir. 2006) (quoting Mireles v. Waco, 502 U.S. 9, 12-13, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)). “This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” Id. (adopting doctrine of absolute judicial immunity in Section 1983 actions) (internal citation omitted). Based upon the allegations contained in the Complaint and Supplement, the undersigned finds that Judge Hoke is absolutely immune from suit. In his Complaint and Supplement, Plaintiff contends that Judge Hoke violated Plaintiff's constitutional rights by the following: (1) Stating Plaintiff's incorrect date of Indictment during the underlying criminal trial; (2) Allowing Plaintiff's criminal trial to continue when defense counsel stated he was suffering from a vision issue; (3) Refusing the jury's request to view a “document used on the witness stand;” (4) Changing “Codes to enhancement [Plaintiff's] sentence from 61-8b-7 to 61-8b-7(c);” (5) Denying Plaintiff a speedy trial; (6) Failing to issue a decision on a civil suit involving a right of way dispute that has been pending since 2000; and (7) Failing to provide Plaintiff with the name of appointed habeas counsel. (Document No. 2, pp. 4 -5 and Document No. 8, pp. 12 - 14.) As stated above, judges have absolute immunity for their judicial acts even when the judge is accused of acting maliciously and corruptly. The undersigned, therefore, respectfully recommends that Plaintiff's claim against Judge Hoke be dismissed.
4. Prosecutorial Immunity:
In his Complaint and Supplement, Plaintiff appears to allege that Prosecutor Stevens violated his constitutional right based upon the following: (1) Signing the January 2010 Indictment; (2) Improperly charging Plaintiff in Count Seven of the Indictment with a violation of West Virginia Code § 61-8d-59(a); (3) Failure to “produce omnibus discovery motion;” (4) “Lying to the jury about the victim not lying about important things;” and (5) Seeking an indictment of Plaintiff who is innocent of the charges. (Document No. 2, p. 5 and Document No. 8, pp. 4 - 6.) Prosecutors, however, have absolute immunity for activities performed as “an officer of the court” if the conduct at issue is closely associated with the judicial phase of the criminal process. Van de Kamp v. Goldstein, 555 U.S. 335, 341 - 343, 129 S.Ct. 855, 860 - 862, 172 L.Ed.2d 706 (2009). In determining whether a prosecutor is entitled to absolute immunity, the Court must apply the “functional approach” examining the nature of the function performed. Id., 555 U.S. at 342, 129 S.Ct. at 861. It is well established that prosecutors are absolutely immune “for their conduct in initiating a prosecution and in presenting the State's case, insofar as that conduct is ‘intimately associated with the judicial phase of the criminal process.'” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler, 424 U.S. at 430 - 431, 96 S.Ct. at 995). Further, absolute immunity extends to “actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” Buckley v. Fitzsimmons, 509 U.S. 259, 272, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993)(quoting Imbler, 424 U.S. at 431, 96 S.Ct. at 995 - 996)). A prosecutor acts as an advocate or “officer of the court” when performing tasks, such as (1) initiating a judicial proceeding, (2) presenting evidence in support of a search warrant application, (3) conducting a criminal trial, bond hearing, grand jury proceeding or pre-trial hearing, (4) engaging in “an out-of-court effort to control the presentation of [a] witness' testimony,” and (5) making a “professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before the grand jury after a decision to seek an indictment has been made.” Buckley, 509 U.S. at 272, 113 S.Ct. at 2615(quoting Imbler, 424 U.S. at 431, 96 S.Ct. at 995 - 996); Van de Kamp, 555 U.S. at 434, 129 S.Ct. at 861; Dababnah v. Keller-Burnside, 208 F.3d 467, 471 - 472 (4th Cir. 2000)(stating that “numerous courts have found prosecutors absolutely immune when undertaking [extradition proceedings].”)
Furthermore, a prosecutor is entitled to absolute immunity even if he or she “acted with an improper state of mind or improper motive.” Shmueli v. City of New York, 424 F.3d 231, 237 (2ndCir. 2005); also see Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009), cert. denied, 562 U.S. 829, 131 S.Ct. 81, 178 L.Ed.2d 26 (2010); Brown v. Daniel, 230 F.3d 1351 (4th Cir. 2000)(“[T]o the extent [plaintiff] alleges that the prosecutors engaged in misconduct during the prosecution of this case . . ., the prosecutors are absolutely immune.”). Thus, prosecutors are entitled to absolute immunity for withholding materially exculpatory evidence, and knowingly presenting perjured testimony or false or misleading evidence to the Court or grand jury. Burns, 500 U.S. at 490-92, 111 S.Ct., at 1941-42(“A state prosecuting attorney is absolutely immune from liability for damages under § 1983 for participating in a probable-cause hearing . . ..”); Imbler, 424 U.S. at 422, 96 S.Ct. 984 at 991(citing Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927))(finding prosecutor entitled to absolute immunity for allegations that he “maliciously and without probable cause procured plaintiff's grand jury indictment by the willful introduction of false and misleading evidence.”); also see Brown v. Daniel, 230 F.3d at 1352; Lyles v. Sparks, 79 F.3d 372, 377 (4th Cir. 1996); Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994), cert. denied, 513 U.S. 1150, 115 S.Ct. 1101, 130 L.Ed.2d 1068 (1995). Although prosecutors may be entitled to absolute immunity, prosecutors are subject to criminal and professional sanctions for prosecutorial abuses. Imbler, 424 U.S. at 429, 96 S.Ct. at 994; Malley v. Briggs, 475 U.S. 335, 343, n. 5, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). It is well recognized that “[a]bsolute prosecutorial immunity ‘is not grounded in any special esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.'” Dababnah, 208 F.3d at 471(quoting Kalina v. Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)). The Imbler Court determined the importance of protecting the integrity of the prosecutor's office and the judicial system outweighs the desire to afford civil redress to a wronged defendant. Imber, 424 U.S. at 427 - 429, 96 S.Ct. at 993 - 994.
A prosecutor, however, is not entitled to absolute immunity for “investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings.” Buckley, 509 U.S. at 273, 113 S.Ct. at 2615(citing Burns, 500 U.S. at 491, 11 S.Ct. at 1941-42). Thus, a prosecutor is only entitled to qualified immunity for administrative actions or investigative functions not related to trial preparation, such as holding a press conference, engaging in investigative activity prior to the establishment of probable cause to arrest, providing police officers with legal advice during the investigative phase, or acting as a complaining witness in support of a warrant application. Id.; also see Van de Kamp, 555 U.S. at 342 - 343, 129 S.Ct. at 861. The Supreme Court has explained as follows:
There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is “neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other. Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he “has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.”Buckley, 509 U.S. at 273, 113 S.Ct. at 2616(internal citations omitted). Thus, a prosecutor does not have absolute immunity for a claim that he or she fabricated evidence during the preliminary investigation of an unsolved crime. Id., 509 U.S. at 275, 113 S.Ct. at 2616 - 2617.
Liberally construing Plaintiff's Complaint and Supplement, Plaintiff appears to argue that Prosecutor Stevens improperly initiated and pursued criminal charges against Plaintiff. As stated above, prosecutors are entitled to absolutely immune when performing functions “intimately associated with the judicial phase of the criminal process.” See Imbler, 424 U.S. at 430, 96 S.Ct. at 995. It is well established that prosecutors are absolute immunity for initiating a prosecution. See Id. Thus, Prosecutor Stevens is entitled to absolute immunity for initiating and pursuing criminal proceedings against Plaintiff. The undersigned, therefore, recommends that Plaintiff's claim be dismissed as Prosecutor Stevens is entitled to absolute immunity from suit under Section 1983.
5. Improper Parties:
In his Complaint and Supplement, Plaintiff appears to allege that Defendants Navy, Bowen, Williams, Hoosier, Corey, and Workman violated his constitutional rights by providing ineffective assistance of counsel. As to Defendant Phillips, Plaintiff states that she wrote the report of examination regarding the victim and was a potential witness. As to Defendant Runyon, Plaintiff asserts she was the person that interviewed the victim and was a potential witness. As stated above, to state and prevail upon a claim under 42 U.S.C. § 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived him of an alleged right, privilege or immunity protected by the Constitution or laws of the United States. The Court first finds that Defendants Navy, Bowen, Williams, Hoosier, Corey, and Workman are not a “state actor.” It is well established that an attorney does not act under the color of state law when retained or court-appointed. Vermont v. Brillon, 556 U.S. 81, 129 S.Ct. 1283, 1291, 173 L.Ed.2d 231 (2009)(“Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.”); Polk County v. Dodson, 454 U.S. 312, 3325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981)(“[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.”); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980)(state-appointed counsel is not acting under color of state law), cert denied, 454 U.S. 1141, 102 S.Ct. 99, 71 L.Ed.2d 293 (1982); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976)(“A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amenable to suit under § 1983.”); Allen v. Campbell, 2019 WL 6936729, * 3 (M.D. N.C. Dec. 19, 2019)(finding that the Public Defender's Office, and those attorneys employed as public defenders, are not state actors); Pretty v. Campbell, 2019 WL 4720983, * 4 (E.D.Va. Sept. 26, 2019)(finding that “[p]rivate attorneys and public defenders do not act under color of state or federal authority when they represent defendants in criminal proceedings”); Kirk v. Curran, 2009 WL 2423971, * 1 (W.D. N.C. Aug. 4, 2009)(“neither public defenders nor private criminal attorneys are ‘state actors' under 1983”), aff'd, 357 Fed.Appx. 529 (4th Cir. 2009); Curry v. South Carolina, 518 F.Supp.2d 661 (D.S.C. June 20, 2007)(finding that the neither the public defender nor the public defender's office are state actors). Concerning Defendants Phillips and Runyon, there is no allegation or indication as to how either may have been a “state actor” for purposes of Section 1983. Even assuming Defendants Phillips and Runyon may have been a witness for the State, they were not a “state actor” for purposes of Section 1983.“[P]rivate citizen witnesses are not ‘state actors' . . . under § 1983.” Nelson v. Thornsbury, 2010 WL 1038509 (S.D.W.Va. Jan. 12, 2010). Based on the foregoing, the undersigned finds that Plaintiff cannot pursue a Section 1983 claim against the Defendants Navy, Bowen, Williams, Hoosier, Corey, Workman, Phillips, and Runyon.
Even assuming Defendants Phillips and Runyon were a witness and a state actor, they would be entitled absolute immunity. Witnesses who testify in Court, including police officers, are absolutely immune from any claims relating to their testimony. Briscoe v. LaHue, 460 U.S. 325, 326, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)(witnesses in judicial proceedings receive “absolute immunity from damages liability under § 1983 based on their testimony”).
6. Heck:
Plaintiff appears to seek monetary damages based upon his conclusory allegation of a violation of his constitutional rights resulting in his wrongful conviction. Given the nature of Plaintiff's allegations, it appears that Plaintiff is implying the invalidity of his conviction and sentence. Consequently, the undersigned finds that Plaintiff has failed to state a cognizable claim under Section 1983 pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the United States Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing the relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87, 114 S.Ct. 2372.See also Ballenger v. Owens, 352 F.3d 842 (4th Cir. 2003)(holding that an arrestee's Section 1983 claim was not cognizable against state trooper, alleging unreasonable search and seizure, under Heck, since judgment in arrestee's favor would have implied the invalidity of conviction). Plaintiff does not indicate that he has been successful in a direct appeal or in habeas proceedings. The undersigned, therefore, finds that because Plaintiff has not demonstrated that his criminal conviction has been invalidated, Plaintiff's Section 1983 claim is not cognizable pursuant to Heck. Accordingly, the undersigned respectfully recommends that the above claims be dismissed.
Plaintiff asserted similar claims in Civil Action No. 2:14-13318, which was dismissed on January 30, 2017. Skaggs v. Hoke, et al., Case No. 2:14-cv-13318 (S.D.W.Va. Jan. 30, 2017).
PROPOSAL AND RECOMMENDATION
The undersigned therefore respectfully PROPOSES that the District Court confirm and accept the foregoing findings and RECOMMENDS that the District Court DENY Plaintiff's Applications to Proceed Without Prepayment of Fees or Costs (Document Nos. 1 and 6), DISMISS Plaintiff's Complaints (Document Nos. 2, 7, and 8) and remove this matter from the Court's docket.
The Plaintiff is hereby notified that this “Proposed Findings and Recommendation” is hereby FILED, and a copy will be submitted to the Honorable United States District Judge Irene C. Berger. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (filing of objections) and three (3) days (if received by mail) from the date of filing of this Findings and Recommendation within which to file with the Clerk of this Court specific written objections identifying the portions of the Findings and Recommendation to which objection is made and the basis of such objection. Extension of this time period may be granted for good cause.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Copies of such objections shall be served on opposing parties, District Judge Berger and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Plaintiff, who is acting pro se.