Opinion
C. A. 9:23-02436-BHH-MHC
09-26-2023
Harvie Lee Lance, Plaintiff, v. Lynorr Musser, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This a civil action filed by Plaintiff Harvie Lee Lance, 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.
In an Order (Proper Form Order) dated July 17, 2023, Plaintiff was directed to provide certain documents to bring his case into proper form. ECF No. 3. In response, he filed some, but not all of the necessary proper form documents. In an Order (Second Proper Form Order) dated August 8, 2023, Plaintiff was again directed to provide certain documents to bring his case into proper form. He was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 9. On August 17, 2023, Plaintiff filed an Amended Complaint (ECF No. 11) and some, but not all, of the necessary proper form documents.
I. BACKGROUND
At the time he filed his Amended Complaint, Plaintiff was a pretrial detainee at the Allendale County Detention Center. He has been released from the detention center. See ECF No. 13. Plaintiff brings claims against Lynorr Musser (Musser), an Assistant Solicitor with the Fourteenth Circuit Solicitor's Office. He asserts federal question jurisdiction and brings claims under 42 U.S.C. § 1983 (§ 1983). In response to a question on the Complaint for Violation of Civil Rights (Prisoner Complaint) form asking Plaintiff what federal constitutional or statutory right(s) he claims are being violated, he wrote:
(1) Deprivation of Due Process Civil Rights.
(2) Indictment process,
(3) Equal Protection claims: “class of one” 14th Amendment U.S. Cons.ECF No. 11 at 4.
Plaintiff states that he was arrested in Lawrenceburg, Tennessee on January 30, 2023, on a warrant from Allendale, South Carolina. He complains that he was only taken to court on one occasion (April 6, 2023) for a bond hearing. Plaintiff contends that his due process rights were violated because he was in jail for seven months and was not indicted. ECF No. 11 at 14. Plaintiff alleges he was “singled out” because he is from out of state (Tennessee) and his bond was set at $250,000 for a charge of larceny/grand larceny, which he appears to assert was too high a bond. Id. at 5.
Plaintiff asserts that on February 1 and April 6, 2023, in the Court of General Sessions for Allendale County, Defendant “did not follow the due process.” He claims that his rights are being violated because he is “being held on Hear Say.” ECF No. 11 at 5 (errors in original). Plaintiff also alleges that Defendant “has by arbitrary and oppressive government actions unlawfully and unconstitutionally detained [him] for 7 months without proof (evidence) to substantial certain allegations brought upon [him]. Thus depriving [him] of [his] life, liberty or property by employing unfair and no contact to let [him] move forward with [his] case.” Id. at 15 (errors in original).
Plaintiff claims that he has suffered mental and emotional injuries and that his blood pressure has been “sky high” because he is being held away from his family. ECF No. 11 at 6. Plaintiff requests an award of $2,000,000. Id.
Records from Allendale County indicate that in February 2023, Plaintiff was arrested and charged with larceny/grand larceny, value $10,000 or more. He was represented by counsel. The records indicate a disposition of “disposed” with a notation of “dismissed-returned to law enforcement” on August 15, 2023. See Allendale County Fourteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Allendale/PublicIndex/PISearch.aspx [search “Harvie Lance”] (last visited Sept. 25, 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).
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. Prosecutorial Immunity
Defendant should be summarily dismissed as a party defendant because Defendant is entitled to prosecutorial immunity. Prosecutors and assistant 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). 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. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). The Fourth Circuit has held a prosecutor “functioning as an advocate for the State ... [is] protected by absolute immunity.” Savage v. Maryland, 896 F.3d 260, 268 (4th Cir. 2018); see Kalina v. Fletcher, 522 U.S. 118, 130 (1997) (finding, inter alia, prosecutor's “presentation of the information ... to the court” was advocacy and thus protected). Therefore, because Plaintiff is attempting to assert a claim against Defendant based on this defendant's participation in Plaintiff's criminal proceedings, his claim is 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”).
In South Carolina, regional prosecutors are called solicitors and assistant solicitors. See S.C. CONST Art. V, § 24; S.C. Code § 1-7-310.
B. Failure to Bring Case into Proper Form
Additionally, it should be noted that Plaintiff has failed to bring this case into proper form. In the Court's Proper Form Order dated July 17, 2023, Plaintiff was given the opportunity to bring his case into proper form by providing certain necessary documents. ECF No. 3. He provided some of the necessary documents, but failed to provide a fully completed application to proceed without prepayment of Fees and Affidavit (Form AO-240) and a fully completed summons form listing the Defendant named in this matter. In the Second Proper Form Order, Plaintiff was directed to provide a completed Form AO-240 and a fully completed summons form for the Defendant named in this matter. Plaintiff has not provided a fully completed Form AO-240 and provided only a partially completed summons form for the Defendant named in his original Complaint (Defendant Fourteenth Circuit Solicitor's Office).
As Plaintiff was previously informed, he failed to complete questions 2-6 on the Form AO-240.
Although Plaintiff, in his Amended Complaint, no longer names the Fourteenth Circuit Solicitor's Office as the Defendant, he was warned in the Second Proper Form order that if he named a new defendant (which he has done here as he has now named Musser as the Defendant), he needed to provide a summons and Form USM-285 for each new defendant. See ECF No. 9 at 5. Plaintiff has not provided a completed summons form and has not provided a completed and signed Form USM-285 for Defendant Musser.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide the required item to bring his case into proper form and has failed to contact the court in any way. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
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 “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint 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).