Opinion
C. A. 9:23-01116-RMG-MHC
08-24-2023
Dea'Shawn Harrison, Plaintiff, v. Amanda Leviner, Magistrate Judge, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by a pretrial detainee. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
This case was originally filed by Plaintiff and another pretrial detainee, Santana Taylor (Taylor). On July 17, 2023, the Court issued an Order (ECF No. 6) directing the Clerk of Court to terminate Taylor as a plaintiff in this case and to assign a separate civil action number to Taylor. Thus, Plaintiff Dea'Shawn Harrison is now the sole plaintiff in this case.
In an Order (ECF No. 8) dated July 25, 2023, Plaintiff was directed to submit documents to bring his case into proper form. Plaintiff has partially complied with the court's Order, and this case is now in substantially proper form. In the Order, Plaintiff was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 8. Plaintiff filed an Amended Complaint (ECF No. 10) on August 15, 2023.
I. BACKGROUND
Plaintiff was a pretrial detainee at the Dorchester County Detention Center (DCDC) at the time he filed this action. Records from Dorchester County indicate that Plaintiff pleaded guilty to robbery (case number 2016A18205000635) and was sentenced to ten years' imprisonment with a suspended sentence of seven years' imprisonment and three years' probation in March 2019. A probation warrant was issued on December 21, 2022. These records indicate notations of “[p]robation reduced to time served” and “placement on administrative monitoring” on April 26, 2023. See Dorchester County First Judicial Circuit Public Index, https://publicindex.sccourts.org/ Dorchester/PublicIndex/PISearch.aspx (last visited Aug. 23, 2023). Plaintiff, who has been transferred to the Berkeley County Detention Center (see ECF No. 4), is currently facing a charge of burglary, third degree, first offense in Berkeley County (case number 2022A0820200313). See Berkeley County 9th Judicial Circuit Public Index, https://publicindex.sccourts.org/Berkeley/Pub licIndex/PISearch.aspxPISearch.aspx (last visited Aug. 23, 2023).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., 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).
Plaintiff brings this action under 42 U.S.C. § 1983 for an alleged violation of his Fifth Amendment rights by Defendant Magistrate Amanda Leviner (Judge Leviner). ECF No. 10 at 3. This appears to concern Plaintiff's detention on a violation of probation charge and the subsequent termination of his probation. See ECF No. 10 at 6, 8. He alleges that the event giving rise to his claim occurred in the video bond room of DCDC's booking area at approximately 9 a.m. on December 14, 2022. Id. at 5. He claims that:
Due to the previous documents that [he] was served by the agent (Tom Gunnels/Regina A. Gunnels in which [he] signed “Without Prejudice UCC-308” (Reserving All Rights) was disregarded by the Defendant named above.ECF No. 10 at 5-6 (errors in original). As relief, Plaintiff requests:
Permanent/Perpetual injunction as well as rewards for pain and suffering that [he] received while under Dorchester County's Detention Center[']s custody which is $75,000 Dollars from the day [he] was admitted to the day [he] was released.ECF No. 10 at 6 (errors in original).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
This action is subject to summary dismissal for the reasons discussed below.
A. Judicial Immunity
Plaintiff names Judge Amanda Leviner (Judge Leviner), a state magistrate judge, as the Defendant in this action. However, Judge Leviner should be summarily dismissed as a Defendant to this action because, based upon the facts alleged, she is entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.”); see also Siegert v. Gilley, 500 U.S. 226 (1991) (immunity presents a threshold question which should be resolved before discovery is even allowed). Further, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356-57. Judicial immunity is not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that “immunity applies even when the judge is accused of acting maliciously and corruptly”). Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11.
B. Heck v. Humphrey
To the extent that Plaintiff is attempting to obtain monetary damages for his robbery conviction and/or the revocation of his parole as to this conviction, his claims are subject to summary dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court established the following test to determine whether a prisoner's claim for violation of due process in the context of a criminal proceeding is cognizable under § 1983:
[I]n 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 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. Thus, 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. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Heck, 512 U.S. at 486-487 (internal footnotes omitted). Additionally, courts have regularly held that Heck applies to parole and probation revocation proceedings. See Thigpen v. McDonnell, 273 F. App'x. 271, 272 (4th Cir. 2008) (§ 1983 claim that state officials conspired to subject plaintiff to double jeopardy by revoking his probation barred by Heck); Via v. Fahey, No. CIV.A. 3:07-CV-778, 2009 WL 223113, at *2 (E.D. Va. Jan. 29, 2009) (“The basic premise behind Plaintiff's claim, that he is entitled to monetary damages and injunctive relief stemming from the improper revocation of his parole and his current incarceration, is legally frivolous under Heck[.]”); Smith v. Hickman, No. 622-CV-02256-HMH-KFM, 2022 WL 14763225, at *2 (D.S.C. Sept. 27, 2022), report and recommendation adopted, 2022 WL 14763209 (D.S.C. Oct. 25, 2022) (allegation that the plaintiff was wrongfully sentenced for a probation revocation or denied reinstatement to probation was subject to dismissal based on Heck).
Plaintiff's Amended Complaint includes no indication that his Dorchester County robbery conviction or sentence has been overturned through a direct appeal, state post-conviction relief application, or habeas corpus proceeding or otherwise invalidated. Here, a judgment in Plaintiff's favor would necessarily imply the invalidity of his conviction, sentence, and/or revocation of probation on the robbery charge.
However, where a plaintiff has already served his sentence, the Heck bar may not apply. See Wilson v. Johnson, 535 F.3d 262, 267-268 (4th Cir. 2008) (holding that former prisoners may in certain circumstances be exempt from Heck's favorable termination requirement); but see Bishop v. County of Macon, 484 Fed.Appx. 753 (4th Cir. 2012) (unpublished) (clarifying that the Wilson exemption to Heck does not apply to every § 1983 suit brought by a former prisoner who failed to obtain habeas relief while in custody). Here, Plaintiff has not argued or asserted any facts to indicate that he was unable to seek habeas relief.
C. Sovereign Citizen Theories
Additionally, to the extent that Plaintiff is attempting to assert claims that are based on “sovereign-citizen” type theories, such claims are subject to summary dismissal as they are frivolous. See Smalls v. Sterling, No. 2:16-4005-RMG, 2017 WL 1957471, at *1 (D.S.C. May 11, 2017); Gaskins v. South Carolina, No. 2:15-CV-2589-DCN, 2015 WL 6464440, at *4 (D.S.C. Oct. 26, 2015) (collecting cases); see also Mitchell v. Vesely, No. 5:17-CV-325-OC-30PRL, 2017 WL 11049094, *1 (M.D. Fla. Aug. 23, 2017) (“While Plaintiff does not state that he is a ‘sovereign citizen,' his arguments are similar to the ‘sovereign citizen' arguments that courts have routinely rejected as frivolous.”). So-called sovereign citizens argue that, though they are born and reside in the United States, they are their own sovereigns and are not United States citizens. Gravatt v. United States, 100 Fed.Cl. 279, 282 (2011). Examples of grounds claimed for this belief include: The Uniform Commercial Code (UCC), maritime and admiralty law, the idea of strawman trusts, a “redemption theory,” and Bible verses. See, e.g., United States v. Anzaldi, 800 F.3d 872, 875 (7th Cir. 2015) (describing the “redemption theory” as a “sovereign citizen-type view which ... holds that the federal government went bankrupt when it abandoned the gold standard in 1933 and began converting the physical bodies of its citizens into assets against which it could sell bonds. A tenet of this view is that knowledgeable citizens can redeem these assets and, through manipulating them in various imagined accounts, use them to their advantage.”); Mason v. Anderson, No. H-15-2952, 2016 WL 4398680, at *2 (S.D. Tex. Aug. 18, 2016) (rejecting sovereign citizen's claim, grounded in the UCC, maritime and admiralty law, strawman trusts, and Bible verses, that he was not subject to the laws of the State of Texas). Sovereign citizens often attempt to use these arguments to “avoid paying taxes, extinguish debts, and derail criminal proceedings.” Gravatt, 100 Fed.Cl. at 282; see also U.S. v. Delatorre, No. 03 CR 90, 2008 WL 312647, at *2 (N.D. Ill. 2008). A plaintiff cannot claim to be a sovereign independent of governmental authority while simultaneously asking the judicial system to grant him recourse. See, e.g., Mason v. Anderson, 2016 WL 4398680, at *2.
Plaintiff uses the title “The beneficiary of” before his name and references the Uniform Commercial Code. See ECF No. 10 at 1, 5.
Plaintiff appears to argue that he was denied due process because he signed a paper served to him by a parole officer with the phrase “Without Prejudice UCC 1-308 (Reserving All Rights)” such that he should not have been subject to probation revocation proceedings. See ECF No. 10 at 5. However, the UCC governs certain areas of commercial law and does not determine a court's jurisdiction or procedures in a criminal proceeding. See, e.g., Amerson v. United States, 550 Fed.Appx. 603, 604 (10th Cir. 2013) (“The UCC governs commercial transactions and cannot be used to upset criminal convictions, even collaterally.”); United States v. Holloway, 11 Fed.Appx. 398, 400 (6th Cir. 2001) (indicating that any contention that the UCC presents a potential defense would be frivolous, as the code is not applicable in criminal proceedings); United States v. Velazquez, 772 F.3d 788, at 794 n. 1 (7th Cir. 2014) (“Although we would have thought this point to be selfevident, a defendant's consent pursuant to the [UCC], which governs certain areas of commercial law, does not determine a court's jurisdiction in criminal proceedings.”) (emphasis in original); United States v. Markham, No. 14-10089-JTM, 2015 WL 338967, at *2 (D. Kan. Jan. 23, 2015) (“The [UCC] has no application to criminal proceedings.”); United States v. Mitchell, 405 F.Supp.2d 602, 604 (D. Md. 2005) (“the U.C.C. has no bearing on criminal subject matter jurisdiction”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
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 835
Charleston, South Carolina 29402
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).