Opinion
C. A. 9:23-02745-RMG-MHC
01-08-2024
Dea'Shawn Harrison, Plaintiff, v. Alan Wilson, The State of South Carolina, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
This is a civil action filed by pro se Plaintiff Dea'Shawn Harrison. He is a pretrial detainee at the Berkeley County Detention Center. 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.
In a Proper Form Order dated August 3, 2023, Plaintiff was directed to provide certain documents to bring his case into proper form). See ECF No. 3. He has provided some, but not all of the necessary documents to bring his case into proper form, as discussed further below.
I. BACKGROUND
Plaintiff names Alan Wilson (Wilson), the Attorney General of South Carolina, as the Defendant and also may also be attempting to name the State of South Carolina as a Defendant. He brings claims under 42 U.S.C. § 1983 (§ 1983) for alleged violations of his Fifth Amendment rights and what he terms his “common law right (Uniform Commercial Code 1-308”). ECF No. 1 at 3.
It is unclear whether Plaintiff intends to name the State of South Carolina as a Defendant or if this is merely a descriptive term. Plaintiff writes “The State of South Carolina Attorney General: Alan Wilson” in the caption of his Complaint (ECF No. 1), but only names Wilson in his list of Defendants (Id. at 2). He also refers to Defendant (one defendant), not Defendants (more than one defendant), in his Complaint. See id. at 4, 17.
Plaintiff asserts he brings a Bivens claim. See ECF No. 1 at 3. Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal officials may be sued for a violation of certain constitutional rights. However, Plaintiff is in state, not federal, custody and he has not named any federal official as a defendant. Thus, it appears Plaintiff is attempting to bring claims under § 1983 a state official and possibly the State of South Carolina.
Plaintiff's allegations appear to concern his arrest in Michigan and subsequent transfer to South Carolina on a probation violation warrant. 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 for Plaintiff's arrest 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.scsccourts.org/Dorchester/PublicIndex/PISearch.aspx (last visited Jan. 5, 2024). Plaintiff, who is currently at the Berkeley County Detention Center (see ECF No. 1 at 15), 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.scindex.sccourts.org/Berkeley/PublicIndex/PISearch.aspxPISearch.aspx (last visited Jan. 5, 2023).
Plaintiff asserts his allegations arose on May 5, 2022, while he was in Detroit, Michigan. He alleges:
My person was taken for public use while and slanderd on publication while the Attorney General Alan Wilson as well as the officials of Berkeley County. I have been detained and arrested while statute of fraud has been committed to do so I stand as a private/natural man with rights reserved without prejudice.ECF No. 1 at 6-7 (errors in original). In his “Basis of Jurisdiction” section of his Complaint, Plaintiff writes:
The Defendant allowed the State of South Carolina (a corporate fiction) to bring allegations (Charge) against my corporate fiction (debtor in-caps/DEASHAWN HARRISON) while trying to make me liable to the fines and prison time when I have reserved my rights “Without Prejudice” Under “Common Laws UCC 1-308.” I have not contracted with the County of Wayne, County of Dorchester, and the County of Berkeley yet I am imprisoned when I have requested that (under my common law right) they bring forth a damaged party who has filed a verified complaint against me and in either of the three cases they have yet to bring forth a victim. Also for the record the administrative officials have committed statute fraud on the behalf of the State of South Carolina. A crime was committed to have my life, liberty, and property to be breached and taken from me. This has been done in all three counties listed above.ECF No. 1 at 17 (errors in original).
As to his alleged injuries, Plaintiff claims that:
I have (again) had my person taken for public use on publication which has damaged my reputation as a honest/stand-up man. I am also missing out on life, liberty, and property (my straw-man trust estate) without due process of law. I've also sufferd from physical abuse and neglect while housed in Dorchester County Detention Center.ECF No. 1 at 7 (errors in original). As relief, Plaintiff requests $75,000 per day and to “be granted sovereign immunity.” ECF No. 1 at 8.
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
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Heck v. Humphrey
To the extent that Plaintiff is attempting to obtain monetary damages as to his detention related to his robbery conviction and/or parole revocation, his claims should be summarily dismissed 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) (premise behind claim, that plaintiff was entitled to monetary damages and injunctive relief stemming from improper revocation of parole and current incarceration, was 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) (any claim that plaintiff was wrongfully sentenced for a probation revocation or denied reinstatement to probation was subject to dismissal based upon [Heck].”)(collecting cases).
Plaintiff's Complaint includes no indication that his robbery conviction, parole revocation, and sentence have been overturned through a direct appeal, state post-conviction relief application, or habeas corpus proceeding or have otherwise been invalidated. It is recommended that Plaintiff's claims be dismissed because a judgment in Plaintiff's favor would necessarily imply the invalidity of his conviction and/or sentence on the robbery charge and/or his parole revocation.
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.
B. Prosecutorial Immunity
Defendant Wilson should be dismissed as a party Defendant because, based on the facts alleged, he is entitled to prosecutorial immunity. Prosecutors have absolute immunity from damages for activities performed as “an officer of the court” where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009); see also Hendricks v. Bogle, 3:13-CV-2733-DCN, 2013 WL 6183982, at *2 (D.S.C. Nov. 25, 2013) (“In South Carolina, the Attorney General and his assistants function as prosecutors in criminal appeals [and] post-conviction relief actions, ....[and they have] absolute immunity for their prosecution-related activities in or connected with judicial proceedings.”); Pressley v. McMaster, No. 3:14-cv-04025-JMC, 2015 WL 5178505, at *4 (D.S.C. Sept. 4, 2015) (“Representing the state's interest in criminal appeals or otherwise defending the validity of a conviction or sentence on appeal or in post-conviction proceedings is ‘intimately associated with the judicial phase of the criminal process,' and thus constitutes an immune function.”); Garrett v. McMaster, 7:07-2952-HFF-WMC, 2008 WL 3411673 (D.S.C. Aug. 11, 2008) (finding that the Attorney General and a former Assistant Attorney General had prosecutorial immunity for conduct related to presenting the State's case). 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 pre-trial “motions” hearings, absolute immunity applies. Van de Kamp v. Goldstein, 555 U.S. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). Therefore, because Plaintiff is attempting to assert a claim against Defendant Wilson based on his participation in Plaintiff's criminal proceedings (including the revocation of his parole), his claims against him are barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”) (emphasis in original); see also Savage v. Maryland, 896 F.3d 260, 268 (4th Cir. 2018) (“In Imbler v. Pachtman, 424 U.S. 409, 430-32 [] (1976), the Supreme Court held that prosecutors are absolutely immune from damages liability when they act as advocates for the State.”).
C. State of South Carolina not a State Actor/Eleventh Amendment Immunity
Additionally, Defendant Wilson, in his official capacity, and Defendant State of South Carolina are entitled to Eleventh Amendment immunity, which divests this court of jurisdiction to entertain a suit for damages brought against the State of South Carolina or its integral parts. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that claims against a state official for actions taken in an official capacity are tantamount to a claim against the state itself). While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the States' Eleventh Amendment immunity in § 1983 cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979). Further, although a State may itself consent to a suit in a federal district court, Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 & n. 9 (1984), the State of South Carolina has not consented to such actions. Rather, the South Carolina Tort Claims Act expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e).
D. UCC
Plaintiff may be attempting to assert claims under the Uniform Commercial Code (UCC). He appears to claim that his rights under UCC 1-308 were violated. However, Plaintiff has alleged no facts to indicate that the UCC is applicable to his case. UCC 1-308 was “intended to enable a party in a commercial transaction to accept the other side's continued performance without waiving the right to sue for breach of contract.” Thompson v. Houlihan, No. 09-C-2914, 2011 WL 833604, at *4 (N.D. Ill. Mar. 4, 2011); see also United States v. Gillen, No. CV B-16-24, 2016 WL 3349163, at *1 n. 1 (S.D. Tex. Apr. 29, 2016), report and recommendation adopted, No. CV B-16-024, 2016 WL 3349323 (S.D. Tex. June 15, 2016). 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 self-evident, 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”). There is no “commercial transaction” involved in this case and Plaintiff has alleged no facts to indicate that the UCC, including UCC 1-308, applies to this action.
E. Sovereign Citizen Claims
To the extent Plaintiff may be attempting to assert claims that are based on “sovereigncitizen” 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 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). 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 appears to bring claims under the UCC, refers to the State of South Carolina as “a corporate fiction,” claims his “person was taken for public use,” states that he stands “as a private/nature man with rights reserved without prejudice,” claims an injury of “missing out” on his “straw[]man trust estate,” and requests that he be granted “sovereign immunity.” See ECF No. 1 at 3-4, 6-8.
F. State Law Claims
To the extent Plaintiff may be attempting to assert claims under South Carolina state law, such claims should be dismissed. As Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and Defendants are citizens of South Carolina.
Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999)(“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
G. Failure to Bring Case into Proper Form
As noted above, Plaintiff has also failed to bring this case into proper form. In the Proper Form Order, Plaintiff was given the opportunity to bring his case into proper form by submitting a summons form; submitting USM-285 forms; and to pay the filing fee or, if he is indigent, to submit a completed and signed Application to Proceed Without Prepayment of Fees and Affidavit (Form AO-240) in order to proceed in forma pauperis. Plaintiff was warned that failure to provide the necessary information within the timetable set forth in the Proper Form Order would subject the case to dismissal. See ECF No. 3. Plaintiff submitted USM-285 forms and a summon No. 6), but has failed to pay the filing fee or submit a completed and signed Form AO-240
The time to bring this case into proper form has now lapsed, and Plaintiff has f provide all of the required items to bring his case into proper form. Thus, in the alternati recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir (holding that district court's dismissal following an explicit and reasonable warning was abuse of discretion).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action prejudice, without leave to amend,5 and without issuance and service of process.
Plaintiff's attention is directed to the important notice on the following 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 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).