Opinion
C. A. 4:23-998-RMG-TER
04-11-2023
Dominick Alexander Brown, Plaintiff, v. Charleston City Police Department, James Heustess, Cade Edwards, Shawn Ferguson, Luther Williams, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
This is a civil action filed by a former 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 already afforded an opportunity to amend his original Complaint and Plaintiff filed an Amended Complaint.
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 his claims are for “discrimination and harassment.” (ECF No. 18 at 5). Plaintiff alleges on March 9, 2023, on Ann Street in Charleston at 11:30 p.m. he was stopped while walking with an open Budweiser by multiple police officers. (ECF No. 18 at 7). Plaintiff alleges all Defendants- Heustess, Edwards, Ferguson, and Williams-are related to the victim from Plaintiff's prior 2018 conviction for stalking; Plaintiff attaches a 2019 permanent restraining order against himself. (ECF No. 1-1); (ECF No. 18 at 7). Public recordsshow Plaintiff recently served a sentence regarding this stalking offense after violating probation by violating the 2019 permanent restraining order. While recognizing persons can be related without having the same last name, Plaintiff's stalking victim's last name is not any of the last names of the Defendants. Moreover, in another action, No. 4:23-976-RMG-TER, Plaintiff also alleged there that detention center employees were related to his 2018 stalking victim. No. 4:23-976-RMG-TER, ECF No. 18 at 6. These allegations border on the implausible/facially frivolous. Plaintiff attempts to correlate the 2023 open container stop to his prior 2018 stalking conviction. (ECF No. 18 at 7). Barely decipherable, Plaintiff then alleges: “I am alleging is discrimination and harassment to prove the arrest that resulted in this restraining order was prejudice to deem it discrimination to make it wrongful arrest and false imprisonment.” (ECF No. 18 at 8). The arrest that “resulted in the restraining order” was years ago; Plaintiff was already convicted, served a sentence on that arrest, and has been released. Plaintiff alleges “no injuries sustained.” (ECF No. 18 at 9). Plaintiff requests 17 million dollars. (ECF No. 18 at 10).
See generally, https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (with search parameters limited by Plaintiff's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
Plaintiff filed an uncaptioned letter with the court requesting DNA be taken from involved parties including his 2018 victim and be submitted to “ancestry” to do a report, citing Brady v. Maryland. Addressing a Bradybased claim in this § 1983 action would be inappropriate where DNA of police who stopped Plaintiff in March 2023 would not yield evidence to undermine Plaintiff's 2018 conviction for stalking.
As to Defendant Charleston City Police Department, Plaintiff's Amended Complaint does not allege an unconstitutional policy, practice, or custom by Defendant Charleston City 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 Charleston City Police Department, in a conclusory fashion, the alleged wrongful acts of its police officers, which does not state a claim as to Charleston City 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, Charleston City 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).
Plaintiff does not allege that he was arrested on the March 9, 2023 stop and Plaintiff filed this action in person at the federal courthouse on March 10, 2023. No public records reflect any 2023 charges. Plaintiff is responsible for constructing coherent arguments and the court will not conjure up questions never squarely presented. 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). Plaintiff's allegations do not plead that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct. Rizzo v. Good, 423 U.S. 362, 371-72 (1976). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id.
Plaintiff has failed to state a claim upon which relief can be granted and this action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss this action with prejudice under § 1915(e) and § 1915A and without issuance and service of process.
It is recommended that this action be dismissed without further leave 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).