Opinion
C/A No. 8:18-cv-02596-MGL-JDA
08-07-2019
Michael Alexander Collins, Plaintiff, v. State of South Carolina, et al., Defendants.
REPORT AND RECOMMENDATION
Michael Alexander Collins ("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 a prisoner in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Broad River Correctional Institution. 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 Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Pending before the Court are Plaintiff's motion for issuance of subpoena [Doc. 24] and motion to join new claim [Doc. 25]. For the reasons below, the undersigned recommends that both motions be denied.
BACKGROUND
When Plaintiff commenced this action, he was a pretrial detainee at the Aiken County Detention Center. Plaintiff commenced this action by filing a sixty-seven page Complaint against twenty-six named Defendants, in which he makes a variety of allegations. [Doc. 1.] In sum, Plaintiff alleges Defendants violated his constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, and he seeks money damages, among other relief. [Id. at 59.] Upon review, the undersigned concluded that Plaintiff appears to assert three general categories of claims: (1) claims of constitutional violations related to his pending state criminal court proceedings; (2) claims of deliberate indifference to a serious medical need related to his knee injury and tooth pain; and (3) claims concerning the conditions of confinement at the Aiken County Detention Center.
When Plaintiff commenced this action, he was awaiting trial on four charges pending against him in the Aiken County Court of General Sessions based on four Indictments, each charging him with criminal sexual conduct with a minor. The Court takes judicial notice that Plaintiff was convicted as to each charge and sentenced to the following terms of imprisonment to be serve concurrently with one another: 25 years for first degree criminal sexual conduct with a minor at Indictment No. 2017GS0201425, 15 years for third degree criminal sexual conduct with a minor at Indictment No. 2017GS0201426, 15 years for third degree criminal sexual conduct with a minor at Indictment No. 2017GS0201427, and 25 years for first degree criminal sexual conduct with a minor at Indictment No. 2017GS0201429. See Aiken County Second Judicial Circuit Public Index https://publicindex.sccourts.org/Aiken/PublicIndex/PISearch.aspx (search case nos. 2017A0210900039, 2017A0210900040, 2017A0210900041, and 2017A0210900042) (last visited August 5, 2019); 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).
On October 9, 2018, the undersigned issued a Report and Recommendation, recommending that the District Court dismiss the action without prejudice and without issuance and service of process. [Doc. 9.] That Report and Recommendation remains pending before the District Court. Plaintiff filed objections to the Report and Recommendation on October 19, 2018 [Doc. 11], a document in support of his objections on December 17, 2018 [Doc. 16], and a motion for injunctive relief and motion to appoint counsel on January 10, 2019 [Doc. 18]. The District Court denied Plaintiff's motion for injunctive relief and motion to appoint counsel on July 18, 2019. [Doc. 27.]
Plaintiff also filed a motion for issuance of subpoena [Doc. 24] on May 17, 2019, and a motion to join a new claim [Doc. 25] on May 20, 2019. By Order dated July 18, 2019, the Honorable Mary Geiger Lewis referred both motions to the undersigned Magistrate Judge for consideration of and/or a recommendation. [Doc. 27 at 2.]
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). 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).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). "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.'" Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
Motion for Issuance of Subpoena
Plaintiff has filed a motion for issuance of a subpoena, requesting that the Court issue a subpoena and command certain witnesses to attend trial pursuant to Rule 45 of the Federal Rules of Civil Procedure. [Doc. 24 at 1.] Plaintiff identifies a number of witnesses that he contends are "critical to establish eyewitness testimony," and he asks the Court to "help find the witnesses" and compel them to testify in court. [Id. at 2.]
Plaintiff's motion should be denied. Because the undersigned has recommended that this action be dismissed without service of process, the motion for issuance of subpoena, which is for discovery purposes, is moot. See Carroll v. United States, No. 5:14-cv-02167-JMC, 2015 WL 854927, at *6 (D.S.C. Feb. 27, 2015) ("as the issuance of the subpoena is for discovery purposes, this case's dismissal renders the request moot").
Motion to Join New Claim
Plaintiff has also filed a motion to join a new claim. [Doc. 25.] Specifically, Plaintiff seeks to add a claim challenging the constitutionality of South Carolina Code § 16-3-657, which provides "[t]he testimony of the victim need not be corroborated in prosecutions" of criminal sexual conduct. According to Plaintiff, the statute violates the Fifth, Sixth, and Fourteenth Amendments because it denies a fair trial and makes the jury partial and biased. [Id. at 1.] Plaintiff contends that the language of the statute "makes testimony of [an] alleged victim stronger than any other statement" and "makes [the witness statement automatically proven] true enough to convict even if it is false or a lie." [Id. at 2.] Plaintiff contends that the statute implies that the jury should believe the victim's statement over any other statement, which creates bias and prejudice. [Id.] Thus, Plaintiff contends, the statute violates the Constitution by denying a criminal defendant the right to due process and a fair and impartial trial. [Id.]
Plaintiff's motion should be denied. As noted, the undersigned has recommended that the Complaint in this action be dismissed. Plaintiff seeks leave to assert a new claim that is unrelated to the claims asserted in his original Complaint. The undersigned construes the instant motion as either one seeking leave to amend the Complaint to add a new claim pursuant to Rule 15(a) or one seeking leave to supplement the Complaint pursuant to Rule 15(d). Although the text of Rule 15(a)(2) requires that the Court "freely give leave [to amend] when justice so requires," Fed. R. Civ. P. 15(a)(2), "a district court may deny leave to amend if the amendment 'would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile,'" United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)).
Rule 15(d) provides: "On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense."
Here, Plaintiff's new claim is unrelated to the claims in his original pleading and must be pursued, if at all, in a separate action. See Abebe v. S.C. Dep't of Corr., No. 0:09-cv-3111-MBS, 2010 WL 3258595, at *5 (D.S.C. Aug. 16, 2010) ("[Plaintiff's] amendment is unrelated to any of the claims in Plaintiff's original and first amended complaints. As such, Plaintiff must file a separate suit to allege these claims pursuant to Fed. R. Civ. P. 15 and 20."). Plaintiff's new claim involves a constitutional challenge to a state statute related to his conviction in the state court. The issues in Plaintiff's original pleading all involved matters asserted prior to his conviction and were related to certain conditions of confinement, Plaintiff's medical needs, and his pending criminal charges. The undersigned has recommended that these claims be summarily dismissed without service of process. Plaintiff cannot now plead an entirely new claim in this action unrelated to his prior claims. See Hicks v. Green, No. ELH-14-cv-3283, 2015 WL 1531248, at *1 n.7 (D. Md. Apr. 2, 2015) ("The supplement provided by [the plaintiff] involves matters unrelated to his allegations against the correctional defendants, which took place prior to his contact with Medical Department staff. Amendment at this juncture would be unjust."). Further, Plaintiff has failed to comply with Rule 5.1 of the Federal Rules of Civil Procedure to assert a constitutional challenge to the state statute. Finally, the undersigned finds that the new claim asserted in Plaintiff's motion seeks a remedy that is akin to habeas relief pursuant to 28 U.S.C. § 2254 and is not proper in this civil rights action. See, e.g., Howell v. Wilson, No. 4:15-cv-2701-JFA-TER, 2015 WL 9311664, at *3 (D.S.C. Oct. 29, 2015), Report and Recommendation adopted by 2015 WL 9412534 (D.S.C. Dec. 22, 2015). Accordingly, because Plaintiff's new claim is unrelated to the claims asserted in his original Complaint, because Plaintiff's original Complaint is subject to summary dismissal, and because Plaintiff has failed to cure the deficiencies of his original Complaint or plead a proper cause of action in this civil rights case, the undersigned finds that Plaintiff's motion to join a new claim should be denied.
To the extent Plaintiff's motion to join a new claim is an attempt to cure the pleading deficiencies of the original Complaint, Plaintiff has failed to cure those deficiencies, as explained in the pending Report and Recommendation and as explained herein, and any further attempt to cure those deficiencies would be futile. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015); see also McCall v. McAlhaney, No. 2:15-cv-01011-TLW-MGB, 2017 WL 3981153, at *9 (D.S.C. July 24, 2017) (declining to consider the "constitutionality of the state statutes because the suit is barred by Heck, was not timely filed, and the Defendant is immune from suit"), Report and Recommendation adopted by 2017 WL 3972052 (D.S.C. Sept. 8, 2017).
RECOMMENDATION
In light of the forgoing, it is recommended that the District Court DENY Plaintiff's motion [Doc. 24] for issuance of subpoena and DENY Plaintiff's motion [Doc. 25] to join new claim. It is further recommended that the District Court dismiss this action without issuance and service of process in accordance with the Report and Recommendation filed on October 9, 2018.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge August 7, 2019
Greenville, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
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).