Opinion
Civil Action 4:20-cv-3235-RBH-TER
06-01-2021
JERRY L. HIGH, Plaintiff, v. RAY CHANDLER, DOUG THORTON, PARK SMALL, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge.
I. INTRODUCTION
Plaintiff, who is proceeding pro se, filed the present action in the Horry County Court of Common Pleas on August 3, 2020, and Defendant Small removed to this court on September 10, 2020, pursuant to 28 U.S.C. § 1442(a). Presently before the court is Defendant Small's Motion to Dismiss (ECF No. 7). Because Plaintiff is proceeding pro se, he was advised by an Order (ECF No. 8) pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's motion could result in dismissal of his Complaint. Plaintiff timely filed a Response (ECF No. 10). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC.
Section 1442(a) provides:
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue....
(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties; ....
II. FACTUAL ALLEGATIONS AND BACKGROUND
Plaintiff's complaint is sparse, consisting of two paragraphs:
All names above are lawyers that was involved in conspiracy, fraud, misrepresent [sic] High. Chandler, Thorton did conspire with Berlin King to put High in prison for 30 years. They withheld evidence during trial.
Park[s] Small (FPDO) did withhold evidence, fraud, misrepresented High. Failed to bring the action of Chandler, Thorton to the court. New evidence will prove to the jury in black and white.Compl. (ECF No. 1-1).
Plaintiff did not set forth in his complaint the relief he is seeking in this action. However, in his response to the Motion to Dismiss, Plaintiff asserts,
I am asking that the court hold all parties responsible for compensation of the opportunity to have a fair trial which resulted in a false imprisonment for over the past 30 years. To invalidate Mr. High[‘s] conviction. The time I have lost with my family and memorable moments that cannot be replaced, our home, and our source of income (two marinas) for my three children to prosper. I los[t] the ability to work and build my social security up even though I worked in prison as a HVAC man, floor installer, and a plumber for the government for 30 years at $40.00 a month.Pl. Resp. p. 3.
Defendant Small provides further background in his Motion to Dismiss by reference to the public record. Plaintiff was indicted in 1989 with one count of attempting to possess with intent to distribute 20 kilograms of cocaine and one count of possession with intent to distribute two kilograms of cocaine. See United States v. Jerry Lynn High, Cr. No. 2:89-25-SB, Order dated Nov. 7, 2014 (ECF No. 7-2). Plaintiff proceeded to trial, and on September 7, 1989, a jury convicted him of both counts. Id. Following Plaintiff's conviction but prior to sentencing the trial court relieved his counsel from further representation “based on defendant's allegation of ineffective assistance of counsel primarily because counsel had not had an expert review the audio tapes introduced at trial.” See United States v. High, 966 F.2d 1445 (1992). Defendant Parks Small, Federal Public Defender, was then appointed by the trial court to represent Plaintiff in connection with post trial motions and any appeal of his conviction. Id. The court sentenced Plaintiff to 360 months of imprisonment, to be followed by ten years of supervised release, with his sentence to run concurrent to a 70-year sentence imposed by North Carolina. Judgment was entered on July 25, 1991. United States v. Jerry Lynn High, Cr. No. 2:89-25-SB, Order dated Nov. 7, 2014.
Plaintiff appealed his conviction and sentence, but the Fourth Circuit Court of Appeals affirmed. See United States v. High, 966 F.2d 1445 (4th Cir. 1992). On August 3, 1993, Plaintiff filed his first motion pursuant to 28 U.S.C. § 2255, which this court denied on July 25, 1994. See United States v. Jerry Lynn High, Cr. No. 2:89-25-SB, Order dated Nov. 7, 2014. Plaintiff appealed, but on January 29, 1996, the Fourth Circuit affirmed. Id.; see also United States v. High, 70 F.3d 1263 (4th Cir. 1995) (affirming the denial of High's first section 2255 motion). Plaintiff then filed a petition for a writ of coram nobis on November 25, 1998, along with additional motions on February 4, 1999, October 14, 2004, January 21, 2005, and June 25, 2010, all of which this court denied. Id.
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003). The court may consider documents attached to a complaint or motion to dismiss “so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)). Further, “[i]n reviewing a Rule 12(b)(6) dismissal, [the Court] may properly take judicial notice of matters of public record.” Phillips v. Pitt Cnty. Mem'l. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Goldfarb v. Mayor and City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015) (“[A] court may properly take judicial notice of ‘matters of public record' and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.'”).
IV. DISCUSSION
As set forth above, the allegations in Plaintiff's complaint are sparse. He does not assert any specific causes of action, though he does mention conspiracy and fraud. In his response to Defendant Small's motion, he asserts that Small is “being sued for his inactions to provide Mr. High his constitutional rights to a fair trial without fraud and withholding evidence.” Pl. Resp. P. 2. He seeks “compensation” and for his conviction to be “invalidated.” Plaintiffs can recover monetary damages for Constitutional violations pursuant to 42 U.S.C. § 1983, but only for such violations committed by individuals acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Suits against federal actors may not be brought via § 1983. District of Columbia v. Carter, 409 U.S. 418 (1973). Small, a federal public defender, was not acting under color of state law during his representation of Plaintiff.
Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and its progeny, the Supreme Court created an action for damages for individuals injured by federal officers for violations of certain constitutional rights. Bivens, 407 U.S. at 397; Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). However, federal public defenders are not federal officials subject to suit under Bivens. Campbell v. North Carolina, No. 1:12-CV-719, 2013 WL 2153110, at *2 (M.D. N.C. May 16, 2013) (citing Anderson v. Sonenberg, 111 F.3d 962 (D.C.Cir.1997); Bradford v. Shankman, 772 F.2d 905 (6th Cir.1985)).
Likewise, state public defenders also do not act under color of state law and are not subject to suit under § 1983. Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980).
The Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., provides a cause of action against the United States “for injury or loss of property, or personal injury or death arising from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment ...” 28 U.S.C. § 2679(b)(1). While the term “employee of the government” can include employees of a Federal public defender organization, there is an exception “when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18.” 28 U.S.C. § 2671. Small was providing professional services to Plaintiff pursuant to a court appointment under 18 U.S.C. § 3006A. Thus, the waiver of sovereign immunity provided by the FTCA is inapplicable here, and Plaintiff has no cause of action under the FTCA.
Even if Plaintiff's claims did fall under § 1983, Bivens, or the FTCA, they would be barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that “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” or otherwise invalidated. Id. at 486-87. Thus, in a § 1983 suit, a district court is required to consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of the conviction; if so, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has been invalidated. Id. The Heck prohibition also applies to Bivens and FTCA claims. See Poston v. Shappert, 222 Fed.Appx. 301, 301 (4th Cir. 2007) (applying Heck in a Bivens action); O'Brien v. United States Federal Government, 763 Fed.Appx. 157 (3d Cir. 2019) (“Furthermore, we discern no reversible error in the District Court's determination that Heck's favorable termination rule may not apply just to the Bivens claim, but to the FTCA and RICO claims in O'Brien's amended complaint as well.”). Plaintiff specifically asks that his conviction be invalidated as a result of Defendants' actions. Judgment in Plaintiff's favor would necessarily imply the invalidity of Plaintiff's conviction, and as discussed above, Plaintiff's challenges to his conviction have been unsuccessful. Therefore, his claims are barred by Heck. The Heck prohibition likewise applies to Plaintiff's claims against Defendant Chandler for the same reasons. See Knowlin v. Thompson, 207 F.3d 907, 908-09 (7th Cir. 2000) (noting a district court may consider Heck sua sponte).
Finally, even if there was some theory of recovery under which Plaintiff could recover damages against Small, the statute of limitations precludes such a claim. The claims against Small relate to his handling of a post-trial motion and direct appeal of Plaintiff's conviction that were disposed of in 1992, over twenty-five years prior to the filing of Plaintiff's Complaint. The statute of limitations for claims such as those asserted by Plaintiff is either two or three years. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (applying § 1983 case law to analyze plaintiff's Bivens claim); Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161-1162 (4th Cir.1991) (statute of limitations for § 1983 claim is the analogous state statute of limitations governing personal injury actions); S.C.Code Ann. § 15-3-530(5) (personal injury statute of limitations in South Carolina is three years); 28 U.S.C. § 2401(b) (requiring claimants under the FTCA to present their claims within two years after the claim accrues). Thus, Plaintiff's claim for damages is barred by the statute of limitations.
Because the statute of limitations here arises from state law, the equitable tolling doctrine also arises from state law. South Carolina adheres to the doctrine of equitable tolling with the burden of proof on the Plaintiff, but “equitable tolling is a doctrine that should be used sparingly and only when the interests of justice compel its use.” Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 687 S.E.2d 29, 33 (S.C. 2009). Plaintiff has not pleaded any facts or otherwise argued that he is entitled to equitable tolling- that he has acted with reasonable diligence and that extraordinary circumstances beyond Plaintiff's control exist.
Plaintiff also seeks to “invalidate” his conviction. However, the public record as set forth above reveals that Plaintiff filed a direct appeal of his conviction that was unsuccessful, filed a § 2255 Motion that was also unsuccessful, and filed numerous other motions and actions challenging the validity of his conviction, all of which were also unsuccessful. Further, Small is not the proper defendant for challenging the validity of his conviction. Therefore, this claim against Small fails.
For the reasons discussed above, it is recommended that Small's motion to dismiss be granted and the claims against him be dismissed. It is further recommended that the claims against Chandler be dismissed as barred by Heck.
Plaintiff's claims against Chandler are also barred by the statute of limitations.
As to Defendant Thorton, the undersigned previously entered an order (ECF No. 13) noting that proof of service as to Thorton had not been filed and directing Plaintiff to either file such proof of service or, to avoid dismissal, show good cause for his failure to timely serve Thorton. In response, Plaintiff filed an Affidavit of Non-Service from the Horry County Sheriff's Department indicating that the Deputy Sheriff made a diligent search for Thorton in August of 2020 but was unable to locate or serve him. Affidavit (ECF No. 19-1). Plaintiff includes a notation to “release Thorton if you desire to.” Id. Federal Rule of Civil Procedure 4(m) provides that a Summons and Complaint must be served within 90 days of the filing of the Complaint. If such service does not occur, the Court can either dismiss the case or, if plaintiff shows good cause for the failure to serve, direct service be effected. Plaintiff has not shown good cause for failure to timely serve Thorton and indicates his consent to his dismissal. Thus, it is further recommended that Plaintiff's claims against Thorton be dismissed without prejudice pursuant to Rule 4(m).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant Small's Motion to Dismiss (ECF No. 7) be granted and Defendant Small be dismissed from this action, that Defendant Chandler be dismissed from this action pursuant to Heck, that Defendant Thorton be dismissed from this action pursuant to Rule 4(m), and this case be dismissed in its entirety.