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recommending dismissal with prejudice because case was frivolous as the defendant judge would have absolute judicial immunity for her judicial actions
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Case No. 2:18-cv-2032-RMG-MGB
09-07-2018
Brenda H. Rivers, Plaintiff, v. Dianne Goodstein, South Carolina State Court Judge, Defendant.
REPORT AND RECOMMENDATION
Brenda H. Rivers ("Plaintiff") has filed a civil action and has paid the full filing fee. (DE# 1, Filing fee $400 receipt number SCX200015653). Plaintiff is a non-prisoner litigant who is proceeding pro se. Plaintiff was given notice of leave to amend, and Plaintiff filed an Amended Complaint on August 27, 2018. (DE#9). Pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(D.S.C.), the United States Magistrate Judge is authorized to submit findings and recommendations to the United States District Judge. After careful review, the Magistrate Judge recommends that this case is both legally and factually frivolous, and should be dismissed , with prejudice, and without issuance and service of process, for the following reasons:
I. The Present Lawsuit
The pro se Plaintiff filed a Complaint, describing her case as a "civil/criminal complaint Intentional Tort action" and also as "a writ for notice of removal from the Courts of General Sessions to the US District Courts of the 14th District in Charleston." (DE# 1 at 1). She sued the State of South Carolina, Tammy Mickalis ("Seller"), Judge Dianne Goodstein, Christy L. Scott (Attorney), an "Unidentified Paralegal," Jay S. Masty (Attorney), Tammy Morgan (Paralegal), and Sheriff R.A. Strickland. (DE# 1). The Complaint's allegations were unclear and difficult to follow. Plaintiff complained about search warrants, searches, arrests, and asked for dismissal of various criminal charges against herself and other people. She appeared to be attempting to interfere with several pending state prosecutions. She also referred to a civil lawsuit in 2016, a real estate sale, eminent domain by SC-DOT, said her husband has been jailed, and referred to contempt of court. (Id.. at ¶ 46). She referred to bomb threats, a bomb that she allegedly placed in her son-in-law's SUV (which was impounded), "contaminated mail" she sent to several attorneys, and a handgun that she allegedly has a license to carry. (Id.. at 32, ¶¶ 29-36, 53). She complained of an allegedly illegal search. (¶ 40). She complained that the state judge signed "a court order to have the Plaintiff arrested for obstruction of justice" and alleged that the "Solicitor is unlawfully attempting to prosecute and convict Plaintiff for a non-existed (sic) crime." (¶¶ 25-27). She sued her former attorneys (¶ 41). She demanded refund of her cash bond, dismissal of criminal charges and warrants, return of seized property, demanded that this federal court order SC-DOT to pay her $7,500 for gravel in her driveway, wanted free cable television service for life, and wanted the state judge to appear on national television to apologize to Plaintiff (Id. at 31-32 and ¶ 54, "Relief Sought").
In light of the apparent pleading deficiencies of such document, this Court entered an Order giving Plaintiff notice of leave to amend her Complaint. (DE#7, 08/15/18). This Court explained that Complaint appeared to be subject to dismissal, but that the Court was giving Plaintiff an opportunity to file an Amended Complaint on or by September 5, 2018. This Court explained that although the Fourth Circuit Court of Appeals has emphasized that it is not the Court's role to resolve pleading deficiencies prior to dismissal, see Abdul-Mumit v. Alexandria Hyundai, LLC, -- F.3d , 2018 WL 3405474 (4th Cir. July 13, 2018), the Fourth Circuit Court of Appeals has also instructed that a pro se plaintiff should generally be given an opportunity to file an Amended Complaint in order to correct factual pleading deficiencies, see Stinnie v. Holcomb, F.App'x , 2018 WL 2337750 (4th Cir. May 23, 2018) (citing Goode v. Cent. Va. Legal Aid Soc., Inc., 807 F.3d 619 (4th Cir. 2015)); and see Fed.R.Civ.Proc. 15 (indicating that leave to amend is "freely given"). In response, the Plaintiff filed an Amended Complaint (DE#9).
In the Amended Complaint, Plaintiff sues the state judge who is presiding over state criminal proceedings against Plaintiff and Plaintiff's husband. (DE# 9). Plaintiff contends (verbatim) that Judge "Goodstein is guilty of committing the criminal offenses listed below and is criminally charge[d] according." (Id. at 2). Plaintiff lists the following as "criminal charges;" A) Slander; B) Character assassination; C) Defamation of character; D) Fraud; E) Deliberate Misrepresentations material facts; F) Fraudulent Issue Bench Warrant; G) Reckless (criminal) endangerment; H) Obstruction of justice; I) Nonfeasance; J) Misfeasance; K) Malfeasance; L) Fraudulent Arrest Warrants Issue a Violation of "Ex post facto" for wrongful charge of Intimidation of a judge and Failure to Appear; M) Violation of Judges (sic) Oath" and Canons 3; N) Breaking and Entering, per, but not just limited to, SCC - Title 16 - Crimes and Offenses, CHAPTER 11, Offenses Against Property, ARTICLE 1.
Plaintiff also lists (verbatim): "Violations of Rights to Privacy" under Amendment I (Privacy of Beliefs) (More General Protection for Privacy); Amendment Ill (Privacy of the Home); Amendment IV (Privacy of the Person and Possessions); and Amendment XIV (Liberty Clause). Plaintiff refers to constitutional provisions, but has not alleged any non-conclusory facts indicating how these constitutional provisions were purportedly violated. Plaintiff appears to be seeking to interfere with pending state criminal proceedings against Plaintiff and her husband. Plaintiff also seeks damages from the state judge for presiding over those pending state criminal proceedings (i.e. she wants "reimbursement" for various state court expenses and $20,000 for Plaintiff's "pain and suffering" for being prosecuted in state court).
In her attached memorandum, Plaintiff states her theory that she and her husband, as moving parties, hold "absolute supreme authority over the lawsuit/court action, ...decides how the lawsuit is to proceed, when to be heard ...the presiding judges have no authority or say to the contrary." (DE# 9-1 at 6). She contends (verbatim) that "if the Moving Party is the Sui Juris not only does the Moving Party he/she have unquestionable authority but also have the inalienable rights as well over the civil or criminal lawsuit.' (Id.). Plaintiff contends that the Defendant state judge "wilfully committed several felonies" when she set a hearing or otherwise controlled her own docket, and thereby violated her oath of office. (Id. at 7). Plaintiff contends that Judge Goodstein "committed a class 'A' felony when she issue[d] a court order for the arrest of the Plaintiff..." (Id. at 10). Plaintiff disputes the basis for the arrest warrant. According to Plaintiff, she filed a "notice of removal" on January 17, 2018 in state court that, according to Plaintiff, "nulls and voids the fraudulent charge of obstruction of justice and the bogus bench warrant" for Plaintiff's arrest. (Id. at 11). Much of Plaintiff's memorandum is essentially incomprehensible. She signs such document as "Brenda H. Rivers™©, Sui Juris, Authorized Representative for "debtor" Civil/Criminal Complaint Intentional Tort Action." (Id. at 18).
For relief, Plaintiff asks (verbatim) for this Court to:
1. Dismiss unconditionally with prejudice the fraudulent obstruction justice charge.
2. Dismiss unconditionally with prejudice the bogus issue bench warrant.
3. Dismiss unconditionally with prejudice the counterfeit charges intimidation of a judge and failure to appear.
4. That Dianne Goodstein ordered to reimburse the Plaintiff $4,000.00 posted cash bail bond unlawfully impose against the Plaintiff.
5. That this Court orders Dianne Goodstein immediately return to the Plaintiff ALL her personal possessions and personal effects unlawfully confiscated by R A Strickland.
6. That the wrongful impounding of the Plaintiffs son-in-law SUV moves the Court to order Dianne Goodstein reimbursement the Plaintiff for the $400.00 paid to have the wrongful impounded SUV release to include $1,000.00 pain and sufferings, humiliations and the family suffered inconveniences.(DE#9 at 9).
7. That this Court is moved to render a court ruling with issue court order attach ordering Dianne Goodstein to pay compensation in the amount of twenty thousand (20,000.00) dollars in legal tender for the pain and sufferings of the Plaintiff ...
II. Standard of Review
A. Liberal Construction
Although Plaintiff insists that she is not "pro se," such term simply means "proceeding without the assistance of an attorney." The record reflects that no attorney has entered an appearance on Plaintiff's behalf in this case. Therefore, by definition, she is proceeding "pro se."
Pro se pleadings are liberally construed and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se complaints does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed. Weller v. Dept. of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) cert. denied, 475 U.S. 1088 (1986).
B. No Screening Under 28 U.S.C. §§ 1915 , 1915A, § 1915(e)(2)
Pre-screening under 28 U.S.C. §§ 1915 and 1915A applies to cases brought by prisoners and is not applicable in non-prisoner cases. See e.g., Chong Su Yi v. Social Sec. Admin., 554 F.App'x 247 (4th Cir. 2014); Mayhew v. Duffy, Case No. 2:14 cv 24 RMG-BM, 2014 WL 468938, *1 (D.S.C. Feb. 4, 2014). Additionally, 28 U.S.C. § 1915(e)(2) governs in forma pauperis filings and is inapplicable in cases where, as here, the plaintiff has paid the full filing fee. See, e.g., Chase v. Greenville Tech. College, Case No. 6:12 3376 TMC KFM, 2012 WL 6808967 (D.S.C. Dec. 13, 2012) ("The undersigned is not conducting an initial review pursuant to 28 U.S.C. § 1915(e)(2) because Plaintiff has paid the filing fee."), adopted, 2013 WL 85161 (D.S.C. Jan. 8, 2013); Bardes v. Magera, Case No. 2:08 487 PMD RSC, 2008 WL 2627134, *8 10 (D.S.C. June 25, 2008) (citing Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999)). Therefore, the Magistrate Judge is not reviewing pursuant to 28 U .S.C. §§ 1915, 1915A, or 1915(e)(2).
C. The Court has inherent authority to dismiss a frivolous case
This Court has the inherent authority to summarily dismiss a frivolous complaint. A suit is frivolous if it lacks "an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009). Even where a non-prisoner litigant has paid the full filing fee, the United States Supreme Court has observed that federal district courts possess inherent authority to dismiss frivolous cases. See Mallard v. United States District Court, 490 U.S. 296, 307 08 (1989) ("Section 1915(d) ... authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); Hagans v. Lavine, 415 U.S. 528, 536 537 (1974) (holding that federal district courts may dismiss claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit").
Consistent with such Supreme Court decisions, the Fourth Circuit Court of Appeals has held that "frivolous complaints are subject to summary dismissal pursuant to the inherent authority of the court." Ross v. Baron, 493 F.App'x 405, 406 (4th Cir. Aug. 22, 2012); and see, e.g., Cabbill v. United States, Case No. 1:14-cv-4122-JMC-PJG, 2015 WL 6905072, *5 (D.S.C. Nov. 9, 2015) (same), appeal dism'd, 2016 WL 1085106 (4th Cir. Mar. 21, 2016); Anderson v. Patterson, Case No. 6:16-761-MGL-JDA, 2016 WL 1743095 (D.S.C. April 12, 2016), adopted, 2016 WL 1732763 (D.S.C. May 2, 2016) (summarily dismissing fee-paid, non-prisoner lawsuit as frivolous). Other circuits agree. See Fitzgerald v. First E. 7th St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) ("district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee"); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (holding that a district court may sua sponte dismiss a non-prisoner's fee-paid complaint if the allegations are "totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion"), cert. denied, 528 U.S. 1198 (2000).
The present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that the case is not frivolous and that subject matter jurisdiction exists. See e.g., Carter v. Ervin, Case No. 0:14 cv 865 TLW-PJG, 2014 WL 2468351, *3 (D.S.C. June 2, 2014), appeal dism'd, 585 F.App'x 98 (4th Cir. 2014); Mayhew, 2014 WL 468938 at *1, fn.1 (exercising inherent authority to summarily dismiss a frivolous case filed by pro se plaintiff).
III. Discussion
A. The Amended Complaint is frivolous , both legally and factually
Plaintiff generally refers to constitutional rights, and thus, this case has been liberally construed as an action pursuant to 42 U.S.C. § 1983. However, Plaintiff does not allege any legal or factual basis for any cognizable claim of any constitutional violation. Although courts give "liberal construction" to pro se pleadings, the Fourth Circuit Court of Appeals has instructed that "[p]rinciples requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278; see also Wilson, 699 F.3d at 797.
Review of the Amended Complaint reflects that Plaintiff's claims are frivolous, both legally and factually. Plaintiff purports to file "criminal charges" against the presiding state judge, but has no authority to do so. Plaintiff appears to miscomprehend the legal basis for prosecution (or is merely using the federal judicial system to vent her anger at her own prosecution in state court). Plaintiff is not a prosecutor and lacks the authority vested in such officials. Her attempt to file the present Amended Complaint as a "Criminal Complaint" against a state judge is a nullity of no effect. Plaintiff has no authority to file a criminal complaint or issue arrest warrants. See State v. Blakely, 402 S.C. 650, 658 (2014) (observing that only a prosecutor "has discretion in choosing how to proceed with a case, including whether to prosecute in the first place") (quoting State v. Langford, 400 S.C. 421, 435 n. 6 (2012)). The Supreme Court of South Carolina has explained:
[T]he Executive Branch is vested with the power to decide when and how to prosecute a case. Both the South Carolina Constitution and South Carolina case law place the unfettered discretion to prosecute solely in the prosecutor's hands. The Attorney General as the State's chief prosecutor may decide when and where to present an indictment, and may even decide whether an indictment should be sought.State v. Thrift, 312 S.C. 282, 292 (1994). Plaintiff has no such authority.
Criminal charges are brought by the State, not civil litigants. See Collins v. Palczewski, 841 F.Supp. 333, 340 (D.Nev.1993) ("Long ago the courts of these United States established that criminal statutes cannot be enforced by civil actions"); Pace v. Smith, 2005 WL 5748477, *1 (E.D.N.C. Sept. 30, 2005) (summarily dismissing, and observing that "several of Plaintiff's claims are not civil claims; instead, Plaintiff has stated criminal charges that are ordinarily made by the State"), affirmed, 225 F.App'x 158 (4th Cir. Apr. 27, 2007). To the extent the Amended Complaint attempts to bring criminal charges against the presiding state judge in Plaintiff's state criminal case, the Amended Complaint is frivolous and subject to summary dismissal. See, e.g., Gibson v. NSA, Case No. 6:15 132 HMH JDA, 2015 WL 1519970 (D.S.C. March 12, 2015), adopted, 2015 WL 1520000 (D.S.C. Mar. 30, 2015), affirmed, 606 F.App'x 103 (4th Cir. June 22, 2015) ("even if Plaintiff's factual allegations are considered to be not delusional, this entire action should be dismissed because this Court lacks jurisdiction to bring a prosecution or investigation of anyone").
Plaintiff also cites the criminal statutes 18 U.S.C. §§ 241 and 242, which do not provide any private right of action. See Al-Mujahidin v. Harris, Case No. 9:13 22 BHH, 2015 WL 366933 (D.S.C. Jan. 27, 2015), affirmed, 611 F.App'x 160 (4th Cir. Aug. 6, 2015) (explaining that "both of those statutes are criminal statutes, and ... Plaintiff cannot pursue criminal charges against the Defendants through the filing of this civil action"), citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (holding that a private citizen does not have a judicially cognizable interest in the prosecution of another person); Feurtado v. McNair, Case No. 3:05 1933 SB, 2006 WL 1663792, *2 (D.S.C. June 15, 2006) (observing that frivolousness encompasses "inarguable legal conclusions and fanciful factual allegations," quoting Neitzke, 490 U.S. at 325), affirmed, 227 F. App'x 303 (4th Cir. 2007), cert. dism'd, 553 U.S. 1029 (2008).
Plaintiff also appears to have mischaracterized some civil causes of action as criminal charges. For example, she lists "defamation and slander," which are not criminal offenses. In any event, defamation and slander are not actionable in a § 1983 action. See Paul v. Davis, 424 U.S. 693, 697 710 (1976); DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 199 203 (1989) (§ 1983 does not impose liability for violations of duties of care arising under state tort law); Jones v. SCDC, Case No. 5:12 cv 3554 RBH-KDW, 2013 WL 3880175, *4 (D.S.C. July 26, 2013) (defamation and slander are not actionable under § 1983). Additionally, Plaintiff's characterization of her state prosecution as "defamation and slander" is legally baseless. Under longstanding South Carolina law, contents of governmental records (including judicial proceedings, published cases, and arrest records) do not give rise to liability for slander or libel. See Padgett v. Sun News, 278 S.C. 26, 292 S.E.2d 30, 32 33 (S.C. 1982); Heyward v. Cuthbert, 15 S.C.L. (4 McCord) 354, 356 59 (1827).
Plaintiff cites 28 U.S.C. § 1441, 1443, and 1446, but such statutes pertain to the removal of actions from state court. Plaintiff has not actually removed a state case. Rather she has filed a federal action for which she asserts "federal question" jurisdiction under 28 U.S.C. § 1331. (DE# 9 at 2). Plaintiff indicates she is bringing "criminal charges" against the presiding state judge which she may not do. Her factual allegations are fanciful, make little sense, and consist of invective and hyperbole. The fact that Plaintiff is displeased with various state court criminal proceedings against her (and her husband) does not give her a basis to remove pending state criminal proceedings to federal court, nor does it give her a basis to bring "criminal charges" against the presiding state judge.
Although Plaintiff purports to bring "criminal charges" against the state judge, she cites the civil statutes 42 U.S.C. §§ 1983, 1985, and 1986.
Plaintiff may not litigate on behalf of other persons, including her husband. A pro se plaintiff may litigate only her own personal claims. Title 28 U.S.C. § 1654 provides that: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." The statute does not extend the right of self-representation to litigating on behalf of others. Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005) ("The right to litigate for oneself, however, does not create a coordinate right to litigate for others").
The mere recitation of inapplicable statutes in connection with patently frivolous claims does not save Plaintiff's Amended Complaint. See, e.g., Randolph v. Metlife Bank NA, Case No. 3:13 111 MBS PJG, 2013 WL 1386346 (D.S.C. March 4, 2013) (despite references to various federal legal authorities, the complaint provided no basis for federal question jurisdiction), adopted, 2013 WL 1386703 (D.S.C. April 3, 2013) ("the complaint raised no colorable federal question").
The Amended Complaint also indicates that both parties are South Carolinians, and therefore, diversity jurisdiction would not apply.
Plaintiff's claims against the state judge are legally baseless and therefore frivolous. See,e g. Carter v. Ervin, Case No. 0:14 cv 865 TLW-PJG, 2014 WL 2468351, *5 (D.S.C. June 2, 2014) ("Plaintiff's claims against the judicial defendants are frivolous and subject to summary dismissal"), appeal dism'd, 585 F.App'x 98, (4th Cir. Oct. 24, 2014). Moreover, judges have absolute judicial immunity for performing their judicial functions. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356 57 (1978); 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."). Plaintiff cannot recover damages from a state judge based on the judge's performance of judicial duties. See, e.g., Faltas v. South Carolina, 2012 WL 988105, *4 (D.S.C. Jan. 27, 2012) (state judges have absolute immunity from a claim for damages arising out of their judicial actions), adopted, 2012 WL 988083 (D.S.C. March 22, 2012), affirmed, 489 F.App'x 720 (4th Cir. Nov. 26, 2012); Bey v. Jefferson, et al., 2017 WL 9250348, *7 (D.S.C. April 24, 2017) ("Even if the case were not entirely subject to dismissal as frivolous ... the Defendant judges would be entitled to absolute judicial immunity for performing judicial duties"), adopted, 2017 WL 1956979 (D.S.C. May 11, 2017). In light of such absolute judicial immunity, further amendment would be futile.
Plaintiff's allegations in the Amended Complaint are frivolous, and therefore, the Amended Complaint is subject to summary dismissal. Plaintiff has already been given an opportunity to amend her Complaint and further amendment would not cure the legal defects of Plaintiff's case. See Stinnie v. Holcomb, -- F.App'x --, 2018 WL 2337750 (4th Cir. May 23, 2018); Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015)) (quoting Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 67 (4th Cir. 1993)).
B. Younger abstention , Plaintiff may not interefere with state criminal proceedings
In her Amended Complaint, Plaintiff also appears to be attempting to enjoin or interfere with her pending state prosecution. She may not interfere with state criminal proceedings by means of this § 1983 action. See Middlesex Cty. Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 431 (1982) (holding that federal courts should abstain from interfering with ongoing state criminal proceedings). Plaintiff demands inappropriate forms of injunctive relief that are not available here. See Younger v. Harris, 401 U.S. 37, 45 (1971) (holding that plaintiff was not entitled to federal court equitable relief against state prosecution where the injury which he faced was solely that incidental to every criminal proceeding brought lawfully and in good faith); Kelly v. Robinson, 479 U.S. 36, 49 (1986) ("the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief").
Under Younger, "federal courts must abstain from exercising jurisdiction when "(1) there is an ongoing state [criminal] judicial proceeding brought prior to substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides adequate opportunity to raise constitutional challenges." Nivens v. Gilchrist ("Nivens II"), 444 F.3d 237, 241 (4th Cir. 2006), cert. denied, 548 U.S. 939 (2006). In Nivens II, the Fourth Circuit Court of Appeals explained that "the fact that [Petitioners] were able to present their claims and have them addressed in state court suffices and continues to make federal intervention inappropriate." Id. at 244 (when a state criminal defendant seeks to enjoin a state prosecution, and absent any extraordinary circumstances, the federal court may properly dismiss with prejudice). Here, Plaintiff will have adequate opportunity in the state proceedings to raise issues related to her arrest warrant, any searches, or other constitutional matters related to her criminal defense.
Plaintiff's Amended Complaint does not plausibly allege any extraordinary circumstances that would permit this federal court to interfere with Plaintiff's pending state prosecution. See Robinson v. Thomas, 855 F.3d 278, 286 (4th Cir. April 27, 2017) (indicating that "Nivens I and II control the disposition of this case"); and see, e.g.,Gray v. Lancaster Cty. Sheriff's Dept., Case No. 08 4097 HFF JRM, 2008 WL 4441937, *1-2 (D.S.C. Sept. 29, 2008) (holding that the Supreme Court's "Younger doctrine prevents the Court from interfering with pending state criminal proceedings absent extraordinary circumstances"); VanDerHorst v. Egger, Case No. 0:10 1537 SB PJG, 2010 WL 3399165, *3-4 (D.S.C. July 2, 2010), adopted, 2010 WL 3399162 (D.S.C. Aug. 25, 2010) (same, summarily dismissing § 1983 action).
The Fourth Circuit Court of Appeals has explained that "[b]ecause in a typical state criminal trial a defendant can raise [her] constitutional claims as a defense to prosecution, [she] has an adequate remedy at law" in the state proceeding. Nivens II, 444 F.3d at 241 (citing Younger); see also Robinson, 855 F.3d at 286. The Supreme Court has emphasized that "[m]inimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights." Middlesex, 457 U.S. at 431,
C. With or Without Prejudice
The only remaining question is whether the dismissal should be with or without prejudice. In Nivens II, the Fourth Circuit Court of Appeals upheld the District Court's dismissal with prejudice, explaining that:
Thus, when a district court abstains from a case based on Younger, it should typically dismiss the case with prejudice; not on the merits, see Greening v. Moran, 953 F.2d 301, 304 (7th Cir. 1992) (holding that "it is not appropriate to address the merits in a case to which Younger applies" because "[t]o say that abstention is in order ... is to say that federal courts should not address the merits, period"), but instead because the court is denied the equitable discretion ever to reach the merits....We, therefore, affirm the district court's dismissal with prejudice.Nivens II, 444 F.3d at 241 ("Younger does not contemplate those issues returning to federal court"). Here, Plaintiff is attempting to "criminally charge" the state judge in Plaintiff's state prosecution. Such attempt is legally baseless and frivolous. Moreover, Plaintiff's demands for injunctive relief based on such claims are barred by Younger. Plaintiff may not enjoin her state prosecution by means of this § 1983 suit. In light of Younger abstention, and given the binding case law cited above, summary dismissal with prejudice is appropriate.
IV. Conclusion
In conclusion, the Amended Complaint should be summarily dismissed because its allegations are frivolous (both legally and factually). Under well-established Supreme Court and Fourth Circuit precedent, this Court may properly exercise its inherent authority to summarily dismiss this frivolous action. Plaintiff may not bring "criminal charges" against the state judge who is presiding over the pending state criminal cases against Plaintiff and/or her husband. The pro se Plaintiff may not litigate on behalf of anyone else. Plaintiff has not actually removed her state court criminal proceedings to this federal court, nor has she alleged any proper basis to do so. Plaintiff has no private right of action under 18 U.S.C. §§ 241 and 242. Plaintiff's attempt to obtain monetary damages from the state judge for her judicial rulings is frivolous, and moreover, the state judge would have absolute judicial immunity for her judicial actions. To the extent Plaintiff is attempting to enjoin her state prosecution by filing this § 1983 suit, this action is subject to dismissal pursuant to the Supreme Court's Younger doctrine. Given that no extraordinary circumstances are apparent, Plaintiff may not enjoin or interfere with her pending state prosecution by filing this § 1983 civil suit. For all these reasons, dismissal with prejudice is appropriate here.
Accordingly, the Amended Complaint (DE# 9) should be dismissed with prejudice, and without issuance and service of process.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE September 7, 2018
Charleston, South Carolina Petitioner'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).