Opinion
C. A. 6:22-cv-00059-JD-KFM
03-16-2022
Cederick Wise, Plaintiff, v. Kenneth Nelson, Arthur Frederick, Divine Carter, Kenneth Greggs, Sherman Anderson, Ms. Jackson, M. Lawrence, B. Williams, John Doe 1, Defendants.[1]
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a state prisoner, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on January 6, 2022 (doc. 1). Upon review, the plaintiff's complaint is subject to summary dismissal.
ALLEGATIONS
The plaintiff, a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action alleging that his sentence has been calculated incorrectly (doc. 1). As an initial matter, the court takes judicial notice of the plaintiff's criminal convictions in the Sumter County General Sessions Court. See Sumter County Public Index, https://publicindex.sccourts.org/Sumter/PublicIndex/PISearch.aspx (enter the plaintiff's name and H536834, H536835, H538107, H538108) (last visited January 26, 2022). Here, the plaintiff alleges that on November 17, 2020, he submitted “substantial evidence” to the defendants that his sentence has been improperly calculated (doc. 1 at 5). The plaintiff alleges that the defendants have violated his rights by not releasing him from SCDC even though he completed serving his sentence on August 17, 2021 (id. at 7). He contends that the defendants are not providing him credit for time he served between July 2018 and June 2019 (id.). The plaintiff alleges that Case No. 6:21-cv-00164-JD proves that he has been kept beyond his appropriate release date (id. at 8). The plaintiff further alleges that during a review board meeting in December 2020, Ms. Jackson indicated that the plaintiff's release date would be June 11, 2022 (id.). The plaintiff told Ms. Jackson that she had the wrong release date and proved it to her with his court documents, but she refused to update his release date (id. at 8-10). The plaintiff submitted an informal request to staff member on January 15, 2021, to John Doe 1 informing John Doe 1 of the incorrect sentence calculation, and John Doe 1 indicated that the incorrect computation would be reported, but the plaintiff's max-out date was never updated (id. at 10-11).
Phillips v. Pitt Cnty. 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 ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
The plaintiff wrote to Mr. Anderson and M. Lawrence asserting that his release date was improperly calculated (id. at 11-12). Mr. Anderson responded to the plaintiff, indicating that his release date had been recalculated based upon the plaintiff's 39 disciplinary charges, which affected his good time (id. at 12). The plaintiff contends that he actually only has 15 disciplinary convictions and that none of them affected his good time (id.). M. Lawrence and Mr. Anderson allegedly violated the plaintiff's rights by not investigating the plaintiff's allegations regarding his max-out date and fixing the plaintiff's max-out date (id. at 12-14).
The plaintiff then requested that Warden Nelson, Ms. Carter, Mr. Frederick, and Maj. Greggs investigate his improperly calculated sentence, but they failed to respond to the plaintiff and correct his sentence (id. at 14-15). A second request to these defendants to correct his sentence calculation, sent on November 3, 2021, was denied without a proper investigation (id. at 15-17). The plaintiff also filed a grievance about his improperly calculated sentence, but B. Williams responded that the plaintiff's request was non-grievable (id. at 17-19). The plaintiff's continued incarceration is a violation of his due process rights (id. at 19-21).
For relief, the plaintiff seeks money damages (id. at 21-22). With his complaint, the plaintiff also filed a motion seeking a permanent injunction that would require the defendants to conduct a proper investigation into his improperly calculated sentence and correct it (doc. 4).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute 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, the plaintiff is a prisoner under the definition of 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 the plaintiff had prepaid the full filing fee, this Court is charged with screening the 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, the 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 (2007) (per curiam). 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).
This complaint is filed 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 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. Nevertheless, the plaintiff's complaint is subject to summary dismissal. As an initial matter, this action is a repeat of another case filed by the plaintiff that was dismissed. See Wise v. Kendall, et al., C/A No. 6: 21-cv-00164-JD, 2021 WL 3410460 (D.S.C. Apr. 16, 2021), Report and Recommendation adopted by 2021 WL 3410057 (D.S.C. Aug. 4, 2021). As such, this action is subject to dismissal because it is duplicative of the plaintiff's prior action that was dismissed.
Sentence Calculation
Even if not duplicative of the plaintiff's prior action, the plaintiff's complaint is still subject to summary dismissal. The plaintiff seeks an order from this court (and the entry of a permanent injunction) requiring SCDC (through the defendants) to investigate and correct his release date (docs. 1; 4); however, such a request cannot be granted in this matter. Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a complaint under the Civil Rights Act, § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004); see Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973) (an application seeking release from custody is an application for habeas corpus and is not an available remedy under the Civil Rights Act). “Habeas corpus, and not § 1983, is the exclusive federal remedy for state prisoners seeking actual release from confinement, ” Griffin v. Baltimore Police Dep't, 804 F.3d 692, 694-95 (4th Cir. 2015) (citing Preiser, 411 U.S. 475, 487-90), and “requests for relief turning on circumstances of confinement may be presented in a § 1983 action, ” Muhammad, 540 U.S. at 750. As such, here, to the extent the plaintiff alleges that the sentence length, start date, or that the sentence calculation used by SCDC is incorrect, seeking correction of his release date, such relief is not available in this civil rights action. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (noting 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” (internal citation omitted)).
The plaintiff's complaint is barred by Heck v. Humphrey
To the extent the plaintiff seeks money damages from the defendants for the incorrect calculation of his sentence, his claims are barred by Heck. In Heck, the United States Supreme Court held that in order to recover damages for imprisonment in violation of the Constitution, the imprisonment must first be successfully challenged. The Court stated:
We hold that, 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. at 486-87 (footnote omitted); see also Edwards v. Balisock, 520 U.S. 641 (1997) (the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies which necessarily imply the invalidity of the judgment). This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). The plaintiff's complaint includes no indication that his sentence as calculated has been overturned through a direct appeal, state post-conviction relief application, habeas corpus proceeding or otherwise (see doc. 1). Moreover, as noted, judicially-noticed, publicly-available online records for the Sumter County General Sessions Court indicate that the plaintiff pled guilty to one count of strong arm robbery (case No. H536834), two counts of kidnapping (case No. H536835 & H538107), and grand larceny (case No. H538108). See Sumter County Public Index, (enter the plaintiff's name and H536834, H536835, H538107, H538108) (last visited January 26, 2022). The plaintiff's convictions do not indicate a favorable termination; thus, his damages claim is barred by Heck.
The holding in Wilson v. Johnson, 535 F.3d 262 (4th Cir. 2008) does not apply to the plaintiff's case because he is still incarcerated. Wilson, 535 F.3d at 267-68 (finding that the Heck bar does not apply when a plaintiff is no longer in custody and thus cannot seek habeas relief).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Com. Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). As noted in more detail above, this action is duplicative of prior litigation in this court, the plaintiff may not seek release from prison in this action, and his request for damages is barred by Heck. Thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend his complaint. Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. Based upon the foregoing, it is further recommended that the plaintiff's motion for a permanent injunction (doc. 4) be denied. It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g). The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
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).