Opinion
Case No. 2:18-cv-3198-CMC-MGB
02-22-2019
Shawndell Monte McFarlin, #200701, Plaintiff, v. Scott S. Harris, Defendant.
REPORT AND RECOMMENDATION
Shawndell McFarlin has filed suit against Scott Harris, Clerk of the Supreme Court of the United States. McFarlin is a state prisoner proceeding pro se and in forma pauperis. Under Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the complaint and to submit a recommendation to the United States District Judge. For the following reasons, the undersigned recommends that this action be summarily dismissed, with prejudice and without issuance and service of process.
BACKGROUND
This case follows—and, in some ways, is about—the dismissal of a previous lawsuit McFarlin filed against Harris and Redmond Barnes, an assistant clerk at the Supreme Court. See McFarlin v. Harris, 2:17-cv-3215-CMC (D.S.C.). In that case, McFarlin sued Harris and Barnes for rejecting an original-jurisdiction petition he attempted to file at the Supreme Court. He alleged Harris and Barnes conspired against him to reject a legitimate petition. He asked this Court to award damages and to compel the defendants to file his petition so that the Supreme Court would rule on it.
Upon initial screening McFarlin's complaint, the undersigned determined it was subject to summary dismissal because the defendants were immune from suit and because the complaint failed to state a mandamus claim against the defendants. The undersigned issued a report recommending that the Court dismiss the complaint with prejudice. 2017 WL 9275087 (Dec. 14, 2017). Over McFarlin's objection, the Court adopted the report and recommendation. 2018 WL 416560 (D.S.C. Jan. 16, 2018). McFarlin appealed. The Fourth Circuit affirmed, on this Court's reasoning. 717 F. App'x 354 (4th Cir. 2018) (per curiam). McFarlin then sought relief at the Supreme Court. The Supreme Court denied McFarlin's petition for certiorari, 139 S. Ct. 159 (2018), as well as his petition for rehearing of that denial, 2019 WL 113574 (U.S. Jan. 7, 2019).
In his new lawsuit, he calls the proceedings in the first case a "scam," a "miscarriage of justice," and a "misprision of a felony." (Dkt. No. 1 at 3, 4.) In addition to criticizing the rulings in the first case, he points out that Harris signed the letter notifying him that the Supreme Court denied certiorari. McFarlin contends Harris improperly participated in the adjudication of his own lawsuit. (Id. at 4.) And McFarlin continues to insist the Supreme Court should have heard his original-jurisdiction petition. Citing 18 U.S.C. § 1501 et seq., 28 U.S.C. § 1361, and 42 U.S.C. § 1983, McFarlin asks that the Supreme Court's order denying certiorari be suspended, that the petition he attempted to file in the Supreme Court be adjudicated on the merits, and that his conviction and sentence be vacated. (Dkt. No. 1 at 1, 4; Dkt. No. 1-4 at 5.)
STANDARD OF REVIEW
The Court is required to screen prisoner complaints seeking redress from governmental entities, officers, or employees. See 28 U.S.C. § 1915A. The Court must dismiss any prisoner complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915A(b). Those same criteria are grounds for dismissing a case filed by someone proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). As to failure to state a claim, a complaint filed in federal court "'must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court need not, however, accept as true a complaint's legal conclusions. Id. When "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Because McFarlin is pro se, the undersigned has screened the complaint liberally and considered whether it includes any potential grounds for relief. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). That does not mean, however, the Court can ignore a clear failure to allege facts that set forth a cognizable claim. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
DISCUSSION
McFarlin has not articulated a claim for relief under any of the three statutes he cites as the basis for his lawsuit. First, the statutes codified at 18 U.S.C. § 1501 et seq. criminalize various obstruction-of-justice offenses. There is no private right to sue under those statutes. See Heard v. Fed. Bureau of Investigation, No. 9:18-cv-1743-HMH-BM, 2018 WL 4926459, at *2 (D.S.C. Sept. 12, 2018) (collecting cases reaching that conclusion), report and recommendation adopted, 2018 WL 4915825 (D.S.C. Oct. 10, 2018).
Second, 42 U.S.C. § 1983 allows suits only against people acting under color of state law. Harris is a federal employee and thus may not be sued under § 1983. Owens v. Clark, 842 F.2d 1291, 1988 WL 21260, at *1 (4th Cir. 1988) (table) (citing District of Columbia v. Carter, 409 U.S. 418 (1973)). Even liberally construing the complaint as seeking relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the complaint fails to state a Bivens claim; as this Court explained in the first case, Harris is immune from suit for acts he takes in his official capacity. See, e.g., Abebe v. Propes, No. 0:11-cv-1215-MBS-PJG, 2011 WL 2581385, at *3 (D.S.C. June 3, 2011) (collecting cases), adopted, 2011 WL 2600593 (D.S.C. June 29, 2011).
As to McFarlin's claim that Harris participated in the adjudication of his own case, the complaint fails to substantiate that contention. McFarlin alleges only that Harris wrote him a letter saying the Supreme Court denied certiorari. (Dkt. No. 1 at 4.) That allegation, even if true, does not mean Harris participated in the Supreme Court's decision on McFarlin's certiorari petition. Rather, it shows only that Harris notified McFarlin of the Supreme Court's decision. Thus, even assuming McFarlin could sue Harris for improperly participating in the adjudication of his own lawsuit, McFarlin has not alleged facts showing Harris did such a thing.
Third, as in the prior case, the complaint does not allege a claim for mandamus under 28 U.S.C. § 1361. As the Court explained in the prior case, § 1361 empowers district courts to compel federal agents "to perform a duty owed to the plaintiff." § 1361. McFarlin has not identified any duty Harris owes him. In addition, McFarlin has not identified, and the undersigned cannot find, any legal authority giving this Court the power to suspend a Supreme Court order or to direct the Supreme Court to hear a case.
In addition to failing to state a claim, the complaint is subject to dismissal for frivolity. Although McFarlin makes some new allegations, he also rehashes allegations from his prior complaint, and he asks for the some of the same relief as his first case—namely, compelling Harris to accept his petition and the Supreme Court to act on it. "[D]istrict courts are not required to entertain duplicative or redundant lawsuits." Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, at *1 (4th Cir. 2000) (table); see also Paul v. de Holczer, No. 3:15-cv-2178-CMC, 2015 WL 4545974, at *6 (D.S.C. July 28, 2015) (holding that "repetitious litigation of virtually identical causes of action" may be dismissed as frivolous)(citation omitted), aff'd, 631 F. App'x 197 (4th Cir. 2016) (per curiam).
In sum, the complaint fails to state a claim for relief, as a matter of law, and is frivolous. The complaint is therefore subject to summary dismissal. When a complaint's pleading defects can be remedied through amendment, a district court should allow the plaintiff an opportunity to file an amended complaint that fixes the defects. Here, however, the complaint fails to state a claim not merely because of pleading defects, but rather because well-established legal principles plainly bar McFarlin's claims and because the complaint is frivolous. Because "it is clear that further amendment to the complaint would not cure the complaint's defects," Mateen-El v. Bell, 747 F. App'x 169, 169 n.1 (4th Cir. 2019) (per curiam), the Court should dismiss this case with prejudice.
When the Court dismissed the prior case, it stated the dismissal would count as a strike under 28 U.S.C. § 1915(g). 2018 WL 416560, at *2. In the undersigned's view, the dismissal of this case should count as a strike as well. See Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011) (holding that the entire case must be dismissed on enumerated grounds to count as a strike).
The dismissal in the prior case was McFarlin's first strike.
CONCLUSION
The undersigned recommends that the complaint should be summarily dismissed, with prejudice and without issuance and service of process, and that the dismissal count as a strike.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE February 22, 2019
Charleston, South Carolina
The parties' attention is directed to the Important Notice on the next 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).