Opinion
C/A No. 2:20-cv-00991-SAL-JDA
03-20-2020
Terron Gerhard Dizzley, Plaintiff, v. Scott Hixson, Erin Bailey, Georgetown Solicitor's Office, Judge Kristi F. Curtis, Judge William H. Seals, South Carolina Department of Appeals, Johnny James, Ronald Hazzard, Defendants.
REPORT AND RECOMMENDATION
Terron Gerhard Dizzley ("Plaintiff"), proceeding pro se and in forma pauperis, brought this civil action pursuant to 42 U.S.C. § 1983. [Doc. 1.] Plaintiff is an inmate in the custody of the South Carolina Department of Corrections ("SCDC") and is currently incarcerated at the Broad River Correctional Institution. [Id. at 2.] 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. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
BACKGROUND
Plaintiff filed a Complaint on the standard court form [Doc. 1] as well as an attachment entitled "Statement of Claims" in which he makes additional allegations [Doc. 1-1]. Plaintiff sues Defendants under § 1983 purportedly for violations of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. [Id. at 5.] Plaintiff alleges that his claims arise from the events involving his pre-arrest, pre-indictment, trial, and appeal from his conviction. [Id. at 8.]
Plaintiff contends that the Georgetown County Solicitor's Office (the "Solicitor's Office") violated his constitutional rights by subjecting him to malicious prosecution and cruel and unusual punishment. [Doc. 1-1 at 2.] Plaintiff alleges the Solicitor's Office fabricated evidence, obtained an arrest warrant and indictment without probable cause, and failed to train and supervise its employees. [Id.] Plaintiff challenges the arrest warrant, indictment, and the sufficiency of the evidence to arrest, detain, and convict him. [Id. at 3.] Plaintiff alleges that Defendant Bailey, a solicitor, and Defendant Hazzard, a public defender, conspired to interfere with and deprive Plaintiff of his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process. [Id. at 7, 22.] Plaintiff alleges that Defendants Hixson and Bailey, solicitors with the Solicitor's Office, violated his Fourteenth Amendment rights by fabricating evidence, coercing witnesses to submit perjured testimony, introducing false testimony and evidence at trial, and failing to disclose favorable evidence to Plaintiff. [Id. at 11, 24.] Plaintiff alleges that Defendant South Carolina Court of Appeals (the "Court of Appeals") violated his Fourteenth Amendment right to due process and Sixth Amendment right to counsel by allowing Plaintiff's counsel to withdraw his direct appeal without an Anders brief. [Id. at 30.] Plaintiff alleges that Defendant Seals, a Circuit Court judge, and Defendant James, an attorney with the Attorney General's Office, conspired to commit fraud in violation of Plaintiff's Sixth and Fourteenth Amendment rights by authorizing and substituting Attorney Eleanor Cleary as Plaintiff's counsel. [Id. at 32.] Plaintiff alleges that Defendant Curtis, a Circuit Court judge, violated his Sixth Amendment right to self-representation by appointing Attorney Cleary to represent him in his post-conviction relief ("PCR") action. [Id. at 35.]
For his injuries, Plaintiff alleges he has suffered the loss of his liberty, unlawful imprisonment, emotional distress, loss of finances, and cruel and unusual punishment. [Doc. 1 at 7.] For his relief, Plaintiff seeks compensatory and punitive damages against each of the named Defendants. [Doc. 1-1 at 39.]
The Court takes judicial notice of Plaintiff's state court records as well as other cases he has filed in his Court. Importantly, the undersigned notes that Plaintiff has previously filed actions in this Court, including a habeas action under 28 U.S.C. § 2254, alleging similar claims to those he raises in the present action.
See 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. 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, 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 were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his 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). However, even under this less stringent standard, Plaintiff's Complaint is 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 petition 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 this action 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).
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 his pleadings, 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 530 (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).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). As noted, although the court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it "failed to contain any factual allegations tending to support his bare assertion"). While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
Here, Plaintiff's Complaint is subject to summary dismissal because Defendants are each immune from suit and because Plaintiff's claims are barred by the Heck doctrine. The Court will address each issue below.
Defendants are entitled to dismissal
As noted, Plaintiff alleges that Defendants violated his rights under the United States Constitution. However, all of the named Defendants are entitled to dismissal from this action because they either are immune from suit or are not persons subject to suit under § 1983.
Defendants Georgetown County Solicitor's Office , Hixson , and Bailey
Plaintiff sues the Solicitor's Office and Hixson and Bailey, who are both identified as former solicitors with the Solicitor's Office. [Doc. 1 at 2-3.] As an initial matter, the 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). The Solicitor's Office is a building or facility or group of individuals in a building, and inanimate objects, such as buildings, facilities, and grounds, do not act under color of state law. 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). Thus, the Solicitor's Office is not a "person" subject to suit under § 1983.
Further, even if the 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, including Hixson and Bailey. 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. 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.
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.
Here, the alleged wrongful conduct of Defendants Hixson, Bailey, and the Solicitor's Office is intricately related to the judicial process and to the prosecution of the State's case against Plaintiff. Therefore, these Defendants have absolute immunity from suit. See Dowdle v. Skinner, No. 6:12-cv-3253-DCN, 2013 WL 5771199, at *2 (D.S.C. Oct. 24, 2013); 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.").
Defendants Curtis and Seals
Plaintiff sues Kristi F. Curtis and William H. Seals, who are both identified as Circuit Court judges. [Doc. 1 at 3-4.] It is well settled that judges have absolute immunity from a claim for damages arising out of their judicial actions unless they acted have in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Whether an act is judicial or non-judicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13. Absolute immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Here, Plaintiff's allegations against Defendants Curtis and Seals relate to their judicial actions. Thus, because the alleged misconduct of Defendants Curtis and Seals arose out of their judicial actions, judicial immunity squarely applies and should bar this lawsuit against them.
Defendant South Carolina Court of Appeals
Plaintiff sues the Court of Appeals. [Doc. 1 at 4.] As noted, only "persons" may act under color of state law, and, therefore, a defendant in a § 1983 action must qualify as a "person." See Harden v. Green, 27 F. App'x 173, 178 (4th Cir. 2001). The Court of Appeals is a facility or building, which cannot be sued as a "defendant" in a § 1983 lawsuit. See Brooks v. Pembroke City Jail, 722 F. Supp. 1294, 1301 (E.D.N.C. 1989) ("Claims under § 1983 are directed at 'persons' and the jail is not a person amenable to suit."); Williams v. Dorchester Cty. Det. Ctr., 987 F. Supp. 2d 690, 696 (D.S.C. 2013). Buildings, such as the Court of Appeals, usually are not considered legal entities subject to suit. See Harden, 27 F. App'x at 178 (finding that the medical department of a prison is not a person pursuant to § 1983); Nelson v. Lexington Cty. Det. Ctr., No. 8:10-cv-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that a building—the detention center—is not amenable to suit under § 1983).
Further, to the extent that, by naming the Court of Appeals as a Defendant, Plaintiff is attempting to name a particular judge of the Court of Appeals in this action, any such judge would have absolute judicial immunity from this civil action for the reasons noted above with regard to Defendants Curtis and Seals. Thus, to the extent that Plaintiff is attempting to sue a judge of the Court of Appeals, such a claim is barred by judicial immunity.
Finally, the Court of Appeals is an arm of the State of South Carolina and, therefore, Plaintiff's claim for money damages is actually against the State. However, such a claim is barred by the Eleventh Amendment. See Shirley v. S.C. Family Court, No. 9:10-cv-2632-CWH-RSC, 2010 WL 5390123, at *4 (D.S.C. Nov. 30, 2010), Report and Recommendation adopted by 2010 WL 5387606 (D.S.C. Dec. 22, 2010). Accordingly, the Court of Appeals is entitled to summary dismissal from this action.
Defendant Johnny James
Plaintiff sues Johnny James, who is an attorney with the Attorney General's Office. [Doc. 1 at 4.] For the same reasons stated above regarding the solicitors named in this action, Plaintiff's action for damages against Defendant James is barred by the doctrine of prosecutorial immunity. "In South Carolina, the Attorney General is the chief prosecuting officer of the State of South Carolina. The South Carolina Attorney General and the South Carolina Assistant Attorney Generals have absolute immunity from personal liability under 42 U.S.C. § 1983 because they are entitled to prosecutorial immunity for activities intimately associated with the judicial phase of the criminal process." Lester v. Ratigan, No. 4:11-cv-2995-TMC-TER, 2011 WL 6979986, at *2 (D.S.C. Dec. 16, 2011) (internal citation omitted), Report and Recommendation adopted by 2012 WL 78493 (D.S.C. Jan. 9, 2012), aff'd, 472 F. App'x 154 (4th Cir. 2012). Further, a prosecutor's "protected activities include, but are not limited to, prosecutorial actions and decisions related to ancillary civil proceedings such as PCR actions." Wilder v. Brooks, No. 3:08-cv-3089-MBS-JRM, 2009 WL 291065, at *4 (D.S.C. Feb. 4, 2009). Here, Defendant James's alleged wrongful conduct appears to be related to his filing documents in Plaintiff's PCR action on behalf of the State of South Carolina seeking to uphold his conviction. This alleged conduct is intricately related to the judicial process and to the State's involvement in upholding a conviction. Id. Therefore, Defendant James has absolute immunity from this suit and should be dismissed from this action.
Defendant Ronald Hazzard
Plaintiff sues Ronald Hazzard, who Plaintiff identifies as an attorney with the Georgetown County Public Defender's Office. [Doc. 1-1 at 22.] Plaintiff's claims against Defendant Hazzard fail because he is not a state actor for purposes of § 1983. As noted, to state a § 1983 claim, Plaintiff must allege that he was deprived of a constitutional right by a person acting under the color of state law. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). In Polk County v. Dodson, 454 U.S. 312 (1981), the Supreme Court addressed the issue of "whether a public defender acts under color of state law when providing representation to an indigent client" and held that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Id. at 317, 325; see also Hall v. Quillen, 631 F.2d 1154, 1156 (4th Cir. 1980) (concluding a court-appointed attorney was entitled to dismissal of the plaintiff's § 1983 claim against him for want of state action). Simply put, Defendant Hazzard is entitled to dismissal for lack of state action. See Curry v. South Carolina, 518 F. Supp. 2d 661, 667 (D.S.C. 2007) (explaining public defenders are not state actors under § 1983 and thus entitled to dismissal). Plaintiff has not made any allegations to plausibly show that Defendant Hazzard exceeded the "traditional functions as counsel." Polk Cty., 454 U.S. at 325; see also Trexler v. Giese, No. 3:09-cv-144-CMC-PJG, 2010 WL 104599, at *3 (D.S.C. Jan. 7, 2010) (finding attorney was entitled to summary dismissal in § 1983 action where attorney's representation in the state criminal case fell "squarely within the parameters of his legal representation" although the plaintiff was unhappy with the manner in which the attorney represented her). To the extent Petitioner is attempting to assert a claim for ineffective assistance of counsel, he has failed to allege a cognizable claim for relief. See Martin v. Burton, No. 0:12-cv-01088-RBH, 2012 WL 2502711, at *2 (D.S.C. June 28, 2012), aff'd, 485 F. App'x 634 (4th Cir. 2012). Accordingly, Defendant Hazzard is entitled to summary dismissal.
Plaintiff's claims are subject to dismissal
Further, the entire Complaint should be dismissed because it is frivolous and is barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff seeks monetary damages against Defendants, alleging they violated his rights under the Constitution in their investigation, arrest, and prosecution of his state criminal case. Although Plaintiff appears to seek only monetary relief, to the extent he may be seeking release from the custody of SCDC, release from prison is not available in this civil rights action. See Heck, 512 U.S. at 481 (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).
Further, because Plaintiff is seeking money damages based on his allegedly unlawful conviction and 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,
. . . 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 alleges that Defendants each acted to violate his constitutional rights, resulting in an unlawful conviction. 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. Accordingly, Plaintiff's claims are barred and should be dismissed as a right of action has not accrued.
CONCLUSION
Consequently, for the reasons stated above, it is recommended that the District Court dismiss this action without issuance and service of process pursuant to 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972).
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015); Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend pursuant to Goode because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 F. App'x 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 20, 2020
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).