Opinion
Civil Action No. 6:18-2568-HMH-KFM
10-30-2018
Dumarcus Antonio Franklin, Plaintiff, v. Donald Reynolds, Matthew Veil, Circuit 8 Solicitors, Attorneys and Staff, and Sgt. Wheels, Defendant.
REPORT OF MAGISTRATE JUDGE
The plaintiff, 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)(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.
BACKGROUND
The plaintiff is a pretrial detainee at the Johnson Detention Center ("JDC") in Laurens, South Carolina (doc. 1). He filed this action on September 18, 2018, naming as defendants Sheriff Donald Reynolds and Sgt. Matthew Veil of the Laurens County Sheriff's Department, Sgt. Wheels at the JDC, and "Circuit 8 Solicitors, Attorneys and Staff." In his complaint, the plaintiff appears to raise claims of false arrest, evidence and mail tampering, prosecutorial misconduct, and ineffective assistance from defense counsel.
Liberally construing the complaint, it appears that the plaintiff is attempting to sue attorneys from both the Solicitor's Office and the Public Defender's Office.
The plaintiff alleges that Sgt. Veil "indicted" him on October 30, 2017, for drug distribution in case number 17017548 (Id. at 6, 8). The plaintiff suggests that Sgt. Veil altered an exculpatory surveillance video by ending the tape "right before the C.I. was about to re-confirm she smoked up the entire evidence" (Id.). The plaintiff alleges that since there was no longer any evidence, Sgt. Veil improperly obtained evidence from another drug investigation to "forge on a distribution warrant" (Id.).
Although the plaintiff states he was indicted on October 30, 2017, a review of the, Laurens County Eighth Judicial Circuit Public Index reflects that in Law Enforcement Case 17017548, the plaintiff was arrested on February 21, 2018, with the warrant filed on February 26, 2018. Further, the Public Index indicates an indictment was issued on June 22, 2018 (Indictment 2018GS3001023). (See https://publicindex.sccourts.org/Laurens/Publiclndex/PISearch.aspx last visited October 9, 2018); see also Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009)(courts "may properly take judicial notice of matters of public record."). The plaintiff refers to the October 30, 2017 date throughout the complaint.
The plaintiff also alleges that after his arrest, he mailed a letter to Sheriff Reynolds, intending it for another law enforcement officer, in which he accused Sgt. Veil of being corrupt. Thereafter, he contends that Sheriff Reynolds and Sgt. Veil came to the JDC "angry and highly upset," and "incriminated [him] verbally," telling him that "they were going to make sure" he received a 25-year prison sentence (Id. at 5-6). The plaintiff claims Sgt. Wheels tampered with the jail surveillance tape showing this "unconstitutional meeting" by muting out the sound as a means of "decapitating my evidence of favour . . . ." (Id. at 6).
As to the prosecuting attorneys, the plaintiff asserts a claim for prosecutorial misconduct arising out of their failure to dismiss his charges after viewing the surveillance video (Id. at 7-8). The plaintiff suggests that the public defender's staff has also been ineffective due to their failure to successfully challenge his prosecution (Id. at 7).
On October 12, 2018, the undersigned filed an order informing the plaintiff that his complaint contained deficiencies which could subject it to summary dismissal (doc. 11). The court directed the plaintiff to file an amended complaint within 14 days of its order, along with any appropriate service documents (Id.). The time provided in the court's order to file an amended complaint has passed, and the plaintiff failed to do so. As such, for the reasons set forth herein, the undersigned recommends that the case be dismissed with prejudice and without service of process.
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the informa pauperis statute which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. 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 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).
DISCUSSION
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, 132 S.Ct. 1497, 1501, (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.
Prosecuting Attorneys and Defense Counsel
To the extent the plaintiff seeks monetary damages against the attorneys in the Eighth Circuit Solicitor's Office for their role in his prosecution, his claims are subject to dismissal under the well-established legal doctrine of prosecutorial immunity. In South Carolina, regional prosecutors are Solicitors and Assistant Solicitors. See S.C. Const., art. V, § 24; S.C. Code Ann, § 1-7-310. Absolute immunity " . . . is available for conduct of prosecutors that is 'intimately associated with the judicial phase of the criminal process.'" See Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (citing Imbler v. Pachtman, 424 U.S. 409,(1976)). As such, the plaintiff's claims against any solicitor or assistant solicitor within the Eighth Circuit Solicitor's Office must be dismissed, as they have absolute immunity under § 1983.
Any claims that the plaintiff has against attorneys from the Eighth Circuit Public Defender's Office are subject to dismissal because they were not acting under color of state law. Further, the complaint alleges no facts to show that these defendants are state actors amenable to suit under § 1983. The Fourth Circuit Court of Appeals has specifically held that appointed defense counsel are not state actors for purposes of § 1983 claims. See Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980) (finding no state action under § 1983, even where the plaintiff's attorney was court-appointed); Mahaffey v. Sumter Cty. Pub. Def.'s Corp., CIA No. 3:06-3557-SB, 2007 WL 3001675, at *4 (D.S.C. Oct. 9, 2007). ("[T]he Sumter County Public Defender's Corp. did not act under color of state law and is entitled to summary dismissal."). Accordingly, the complaint fails to state a claim upon which relief can be granted against these defendants. Sheriff Reynolds, Sgt. Veil, and Sgt. Wheels
The complaint fails to state a viable claim against Sheriff Reynolds, Sgt. Veil, and Sgt. Wheels. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a "plausible 'short and plain' statement of the claim showing the pleader is entitled to relief." Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear that a plaintiff must do more than make conclusory allegations to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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.
The plaintiff's claim that he was falsely arrested by Sgt. Veil based on faulty evidence is not actionable here. Claims of false arrest "are essentially claims alleging a seizure of the person in violation of the Fourth Amendment." Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001). An essential element of false arrest is that the arresting officers lacked probable cause to arrest. Jackson v. City of Abbeville, 623 S.E.2d 656, 658 (S.C. App. 2005). "The Fourth Amendment is not violated by an arrest based on probable cause." Graham v. Connor, 490 U.S. 386, 396 (1989). Here, Laurens County records show that the plaintiff was indicted (See https://publicindex.sccourts.org/Laurens/Publiclndex/PISearch.aspx) (2018GS3001023). Since he has been indicted on the charges that he seeks to challenge, a claim for false arrest is improper. See Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (an indictment, fair upon its face, returned by a properly constituted grand jury conclusively determines the existence of probable cause); see also Provet v. South Carolina, C.A. No. 6:07-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (Section 1983 claims of false arrest were precluded because of indictment).
The plaintiff's claim that Sheriff Reynolds tampered with his mail is without merit. The plaintiff admits that he mailed the letter asserting Sgt. Veil's alleged corruption to the Sheriff's Office, so the Sheriff did not tamper with it by opening the envelope and reading the letter. As for the suggestion that Sheriff Reynolds and Sgt. Veil acted improperly by following up with him upon receipt of the letter, the plaintiff fails to make out a constitutional violation. At most the allegations reveal that he received merely verbal retribution for his letter, with no allegations that Sheriff Reynolds or Sgt. Veil inflicted physical harm. Moreover, much of the plaintiff's complaint deals with pre-trial or evidentiary matters in his pending state criminal case. Conclusory allegations that (1) Sgt. Veil altered the surveillance tape and sought indictment based on unrelated evidence, (2) Sheriff Reynolds and Sgt. Veil improperly visited him while in custody, and (3) Sgt. Wheels tampered with the JDC's video of that meeting, are all matters which may be raised for consideration in his state case. Federal courts are typically not authorized to interfere with a state's pending criminal proceeding. The plaintiff has the opportunity and ability to raise these claims in his ongoing criminal case, so consideration of these claims here would be premature.
RECOMMENDATION
By order issued October 12, 2018, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. The plaintiff failed to file amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
IT IS SO RECOMMENDED. October 30, 2018
Greenville, South Carolina
s/Kevin F. McDonald
United States Magistrate Judge
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. Am, 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).