Opinion
C/A No. 0:18-cv-3318-RBH-JDA
12-19-2018
Terrill Thompson, Plaintiff, v. Sixth Circuit Solicitor's Office, Defendant.
REPORT AND RECOMMENDATION
Terrill Thompson ("Plaintiff"), proceeding pro se and in forma pauperis, brought this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections ("SCDC") and is currently incarcerated at Kirkland Correctional Institution in Columbia, South Carolina. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. Having reviewed the Complaint in accordance with applicable law, and for the reasons below, the undersigned finds this action is subject to summary dismissal without issuance and service of process.
BACKGROUND
Plaintiff commenced this action by filing a Complaint, naming a single Defendant, the Sixth Circuit Solicitor's Office, and alleging Defendant violated the Fifth Amendment to the United States Constitution depriving Plaintiff of his freedom. [Doc. 1 at 4.] Plaintiff alleges Defendant "knew that the criminal Indictment[ ] was a fraud." [Id.] Plaintiff contends he is being held in prison on a fraudulent Indictment after "Douglas J.R. Barfield and Chris Taylor Solicitor" processed the fraudulent Indictment, as witnessed by a clerk in the Chester County Courthouse. [Id. at 5.] Plaintiff alleges he has suffered emotional distress as the result of the unlawful actions of Defendant, and he seeks $250,000 in actual damages and $350,000 in punitive damages. [Id. at 6.]
The Court takes judicial notice that Plaintiff is serving a ten-year sentence for common law robbery at Indictment No. 2010-GS-12-725, a fifteen-year sentence for first degree burglary at Indictment No. 2008-GS-12-711, and a fifteen-year sentence for strong arm robbery at Indictment No. 2008-GS-12-712. See Chester County Sixth Judicial Circuit Public Index https://publicindex.sccourts.org/Chester/PublicIndex/PISearch.aspx (search case nos. K289021, H960447, and H960461) (last visited Dec. 17, 2018); see also 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.'") (alteration omitted).
STANDARD OF REVIEW
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 "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 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.
As a pro se litigant, Plaintiff's 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). 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 the Court may not rewrite a pleading to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct 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
Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983, which "'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) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil 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). 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).
In his Complaint, Plaintiff brings suit against the Sixth Circuit Solicitor's Office, alleging violations of the Fifth Amendment to the United States Constitution. [Doc. 1.] This case is subject to summary dismissal based on the doctrine set forth in Heck v. Humphrey and because Defendant is immune from suit, as explained below.
Plaintiff's Claims are Barred by Heck
Here, the entire Complaint should be dismissed because it is frivolous. While the crux of this action appears to be a challenge to Plaintiff's custody in SCDC as unlawful due to an allegedly fraudulent Indictment, it appears that Plaintiff seeks only monetary damages because of the solicitor's allegedly unlawful actions. To the extent Plaintiff may be seeking release from the custody of SCDC, release from prison is not available in this civil rights action. 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) (explaining a challenge to the duration of confinement is within the core of habeas corpus). In this action, however, because Plaintiff is seeking money damages based on his allegedly unlawful confinement in SCDC, his claim is premature because he is currently serving a sentence for a conviction that has not yet been invalidated. In Heck, the Supreme Court pronounced,
Indeed, the Court notes that Plaintiff has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this Court, raising similar claims to those raised in the instant action, at case No. 8:18-cv-3361.
. . . in 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 a 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 that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. Further, the Supreme Court stated that,
. . . when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.Id. This is known as the "favorable termination" requirement, which Plaintiff has not alleged he has satisfied. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008).
The Heck holding applies to this case. Plaintiff seems to allege that the Sixth Circuit Solicitor's Office acted improperly by charging him in a fraudulent Indictment. However, Plaintiff does not allege that his conviction has been invalidated, for example, by a reversal on direct appeal or a state or federal court's issuance of a writ of habeas corpus. A favorable determination on the merits of Plaintiff's § 1983 claim would imply that Plaintiff's criminal conviction and sentence, which he is currently serving, were invalid. Thus, this § 1983 claim should be dismissed because a right of action has not accrued.
The limitations period will not begin to run until the cause of action accrues. See Morris v. Cardillo, No. 0:10-cv-0443-JFA-PJG, 2010 WL 2722997, at *2 (D.S.C. Apr. 15, 2010), Report and Recommendation adopted by 2010 WL 2722992 (D.S.C. July 9, 2010).
Defendant is Entitled to Dismissal
Further, even if Heck did not bar Plaintiff's claims, he has failed to name a party that is amenable to suit under 42 U.S.C. § 1983. Even though Plaintiff's Complaint, as a whole, is frivolous and subject to summary dismissal for the reasons stated above, the Court also notes that the sole Defendant named in this action, the Sixth Circuit Solicitor's Office, is entitled to immunity from suit.
As an initial matter, the Sixth Circuit Solicitor's Office is not a "person" within the meaning of § 1983. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690 & n. 55 (1978) (noting that for purposes of § 1983 a "person" includes individuals and "bodies politic and corporate"). The Solicitor's Office is a building or facility, and inanimate objects, such as buildings, facilities, and grounds, do not act under color of state law. Thus, this Defendant is not a "person" subject to suit under § 1983. See Rhodes v. Seventh Circuit Solicitor's Office, No. 9:09-cv-1863-JFA-BM, 2009 WL 2588487, at *3 (D.S.C. Aug. 19, 2009) (citing Hancock v. Washtenaw Cty. Prosecutor's Office, 548 F. Supp. 1255, 1256 (E.D. Mich. 1982)).
Further, even if the Sixth Circuit Solicitor's Office could be construed as a "person" under § 1983, it would be entitled to prosecutorial immunity, as would any individual solicitor or assistant solicitor within that office. Plaintiff alleges that "Douglas J.R. Barfield and Chris Taylor Solicitor" filed fraudulent Indictments. [Doc. 1 at 5.] Thus, to the extent that Plaintiff intended to name a solicitor within the Sixth Circuit Solicitor's Office as a defendant, any actions taken by that solicitor in preparing a criminal charge and prosecuting the case against Plaintiff were part of the judicial process; therefore, the solicitor has absolute immunity from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity "is immunity from suit rather than a mere defense to liability") see also Van de Kamp v. Goldstein, 555 U.S. 335, 340-43 (2009); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000).
In South Carolina, regional prosecutors are called Solicitors and Assistant Solicitors. See S.C. CONST Art. V, § 24; S.C. Code § 1-7-310. As noted by the cases cited above, such prosecutors are protected by immunity for activities in or connected with judicial proceedings.
In Imbler v. Pachtman, 424 U.S. 409 (1976), the United States Supreme Court held that prosecutors, when acting within the scope of their duties, have absolute immunity from 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." Id. at 430. This absolute immunity from suit applies when prosecutors exercise their prosecutorial discretion, such as they do when they make the determination to go forward with indictment. See, e.g., Springmen v. Williams, 122 F.3d 211, 212-13 (4th Cir. 1997); Carter v. Burch, 34 F.3d 257, 261 (4th Cir. 1994); Pachaly v. City of Lynchburg, 897 F.2d 723, 727 (4th Cir. 1990); Weller, 901 F.2d at 397 n.11 (4th Cir. 1990). 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 pretrial "motions" hearings, absolute immunity applies. Van de Kamp, 555 U.S. at 341-45.
Here, it appears that Defendant's alleged wrongful conduct relates to its pursuing a criminal case against Plaintiff by filing an Indictment. This alleged conduct is intricately related to the judicial process and to the prosecution of the State's case against Plaintiff. Therefore, this Defendant has absolute immunity from this suit. Dowdle v. Skinner, No. 6:12-cv-3253-DCN, 2013 WL 5771199, at *2 (D.S.C. Oct. 24, 2013); Rodgers v. Riddle, No. 6:09-cv-1446-PMD, 2009 WL 1953188, at *3 (D.S.C. July 7, 2009); Brooks v. Johnson, No. 2:15-cv-1074-PMD-BM, 2016 WL 551958, at *6 (D.S.C. Jan. 20, 2016), adopted sub nom., Brooks v. Williamsburg Cty. Sheriff's Office, No. 2:15-cv-1074-PMD-BM, 2016 WL 1427316 (D.S.C. Apr. 11, 2016); Rhodes, 2009 WL 2588487, at *3 ("Even if the . . . Solicitor's Office could be construed as [a] 'person[ ]' under § 1983, . . . [the] Solicitor's Office would be entitled to prosecutorial immunity, as would any individual Solicitor or Assistant Solicitor within that office.").
RECOMMENDATION
Accordingly, for the reasons above, it is recommended that the District Court dismiss this action without prejudice and without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). Plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 19, 2018
Greenville, South Carolina
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).