Opinion
Civil Action No. 6:17-1208-RBH-KFM
12-03-2018
Olandio Ray Workman, Plaintiff, v. Metro PCS Mobile Phone Company, Mr. Richardson, Mr. Lewis, and Greenville County Sheriff's Office, Defendants.
Report and Recommendation
The plaintiff, proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is the plaintiff's amended complaint filed pursuant to 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(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. Based on the plaintiff having now been convicted in his underlying state court action, the undersigned recommends that the stay previously imposed here be lifted, and that the plaintiff's claims as to Mr. Richardson and Mr. Lewis be dismissed.
BACKGROUND
The plaintiff Olandio Workman, formerly a pretrial detainee at the Greenville County Detention Center, filed his initial complaint on May 8, 2017 (doc. 1) against the defendants Metro PCS Mobile and Mr. Richardson alleging that they violated his constitutional rights (doc. 1 at 4). On May 18, 2017, the undersigned issued a Report and Recommendation recommending that the action be summarily dismissed without prejudice for failure to state a claim upon which relief may be granted with respect to these defendants (doc. 9). On June 26, 2017, the District Court adopted the Report and Recommendation and dismissed the case without prejudice and without issuance and service of process (doc. 13 at 4). Thereafter, the plaintiff appealed to the Fourth Circuit Court of Appeals (doc. 16). The Fourth Circuit Court of Appeals issued an unpublished opinion on January 19, 2018, dismissing the appeal for lack of jurisdiction and remanding the case to the district court with instructions to allow the plaintiff to amend his complaint (doc. 22). On January 19, 2018, the District Court ordered the plaintiff to file an amended complaint within fifteen days of its order (doc. 24). An amended complaint was not filed by the deadline ordered by the District Court, and on February 8, 2018, the magistrate judge issued a report that recommended that the District Court dismiss this action with prejudice due to the plaintiff's failure to prosecute (doc. 27). Thereafter, on February 22, 2018, the plaintiff filed an amended complaint (doc. 31). In light of this filing, on March 8, 2018, the District Court issued an order declining to adopt the Report and Recommendation and recommitting the matter to the magistrate judge for screening of the plaintiff's amended complaint (doc. 33). Following the issuance of two separate reports and recommendations by the undersigned, the Honorable R. Bryan Harwell, United States District Judge, dismissed the defendants Metro PCS Mobile, the Greenville County Sheriff's Office, and Mr. Lewis in his official capacity, and entered a stay as to the defendants Mr. Richardson and Mr. Lewis (in his personal capacity) while the plaintiff's underlying state criminal case was pending (doc. 53). The plaintiff appealed this order on July 26, 2018 (doc. 57). While the appeal was pending, the plaintiff's state case went to trial, and he was convicted of domestic violence of a high and aggravated nature, kidnapping, and possession of a weapon during a violent crime, and sentenced to a concurrent total of 15 years in prison (doc. 63-1). On November 20, 2018, the Fourth Circuit Court of Appeals dismissed the plaintiff's appeal for lack of jurisdiction (doc. 65). Accordingly, as the underlying state case has now concluded with the plaintiff's conviction, and the plaintiff's federal appeal has now been dismissed, the case returns to this court for further consideration. As Judge Harwell has already dismissed Metro PCS Mobile, the Greenville County Sheriff's Office, and Mr. Lewis in his official capacity, the undersigned issues this report and recommendation to address the remainder of the case as it pertains to Mr. Richardson and Mr. Lewis in his personal capacity.
The plaintiff was charged with domestic violence of a high and aggravated nature, kidnaping, possession of a weapon during a violent crime, and possession of a firearm or ammunition by a convicted felon (Workman v. Perry, C.A. No. 6:17-2136-RBH-KFM, doc. 20-1 at 18-20). As addressed below, on September 20, 2018, he was convicted by a jury of the first three charges and sentenced to a concurrent aggregate sentence of 15 years in prison (doc. 63-1). A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc., v. Francine Co., 425 F. 2d 1295, 1296 (5th Cir. 1970).
The caption of the amended complaint lists as plaintiffs Olandio Workman, Loretta Workman, Anu Workman, and Devillan Workman (doc. 31 at 1). However, only Orlando Workman is listed in the "Parties" section of the complaint and only Orlando Workman signed the complaint. As such, the only plaintiff before the court in this case is Olandio Workman.
ALLEGATIONS
In his amended complaint, the plaintiff alleges that his Fourth Amendment Rights were violated and that Title III of the Omnibus Crime Control and Safe Street Act of 1968 was violated (doc. 31 at 4). The plaintiff alleges that the defendants Mr. Richardson and Metro PCS Mobile "acted under color of state law . . . when they aid[ed] Greenville County Sheriffs office in trac[]ing our cell phone w[ith]out a search warrant" (id.). He also names "Mr. Lewis" with the Greenville County Sheriff's Office as a defendant. He seeks an award of monetary damages against the defendants.
The plaintiff presents different names for the phone company at issue. For purposes of this analysis, the undersigned will refer to it as Metro PCS Mobile, as listed in the caption of the amended complaint.
DISCUSSION
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). 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). 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 the 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 petition 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 (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). Stay Imposed Pursuant to Younger
Judge Harwell's July 17, 2018, order (doc. 53) staying the case as to Mr. Richardson and Mr. Lewis in his personal capacity noted the plaintiff's underlying state criminal case had not yet gone to trial. As such, Judge Harwell cited the abstention doctrine addressed in Younger v. Harris, 401 U.S. 37, 44 (1971), and extended by Deakins v. Monaghan, 484 U.S. 193, 202 (1988) as the basis for staying this federal case until the state case had concluded. The rationale for abstention in Younger and the entry of a stay in Deakins is to provide the state court the opportunity to resolve it's pending criminal matters without interference or parallel litigation from the federal court. However, now that the plaintiff has been convicted in his underlying state criminal case, it is recommended that the stay be lifted here, and the plaintiff's constitutional claims for monetary damages be considered.
The plaintiff's claims for damages against Richardson and Lewis for illegally tracking his cell phone, resulting in his ultimate conviction and imprisonment, are subject to dismissal pursuant to the Supreme Court's ruling in Heck v. Humphrey, which held that in order to recover damages for a conviction or imprisonment in violation of the United States Constitution, the conviction or imprisonment must first be successfully challenged. 512 U.S. 477, 490 (1994); see Edwards v. Balisock, 520 U.S. 641, 647-48 (1997) (holding that the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies that necessarily imply the invalidity of the judgment). The Supreme Court held:
[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm 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 § 1983.512 U.S. at 486-87.
Here, the plaintiff is attempting to attack the validity of his convictions; however, he has not shown that his convictions have been overturned or otherwise impugned. Indeed, just the opposite has occurred: the plaintiff was convicted of domestic violence of a high and aggravated nature, kidnapping, and possession of a weapon during a violent crime, and sentenced to a concurrent total of 15 years in prison (doc. 63-1). The plaintiff clearly had the opportunity to raise his constitutional claims in state court, but was convicted at the conclusion of his trial. Here, a favorable determination on the merits of the plaintiff's Section 1983 claims would require a finding that his conviction and detention were invalid. Accordingly, since the plaintiff has been convicted of the underlying state criminal charges, his civil claims are barred under Heck and subject to summary dismissal.
With respect to any state law claims raised in the complaint, the District Court should decline to exercise supplemental jurisdiction because the complaint's federal claims are recommended for summary dismissal. See 28 U.S.C. § 1367(c)(3); see also Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case).
CONCLUSION AND RECOMMENDATION
It is recommended that the stay imposed on July 17, 2018 be lifted.
It is further recommended that the plaintiff's claims against Mr. Richardson and Mr. Lewis in his personal capacity be dismissed pursuant to Heck.
Further, the plaintiff was previously given the opportunity to cure defects in his initial complaint, and he cannot cure the defects in his amended complaint by further amendment. See generally Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). Accordingly, the undersigned recommends that the district court decline to automatically give the plaintiff leave to amend and dismiss this action with prejudice and without issuance and service of process.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge December 3, 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 871 F. Supp. (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).