Opinion
C. A. 5:19-cv-02873-JMC-JDA
10-16-2019
Spencer Utsey, Plaintiff, v. Edgar W. Dickson, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Spencer Utsey, (“Plaintiff”), proceeding pro se and in forma pauperis, brought this civil action pursuant to 42 U.S.C. § 1983. [Doc. 1.] Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the Kirkland Correctional Institution. [Id. at 2.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
BACKGROUND
Plaintiff has filed a Complaint on the standard court form [Doc. 1] as well as an attachment entitled “Cause of Action” in which he makes additional allegations [Doc. 1-1]. Plaintiff sues a single Defendant in this action, the Honorable Edgar W. Dickson (“Defendant” or “Judge Dickson”), a South Carolina Circuit Court Judge in Bamberg County. [Doc. 1 at 2.] Plaintiff sues Defendant under § 1983 in light of “the constitutional right of freedom being deprived and judicial misconduct [and] fraud by [Defendant].” [Id. at 4.] Plaintiff alleges that Defendant “presigned a conditional order of dismissal to [Plaintiff's] PCR” on December 29, 2017. [Id. at 5.] Plaintiff alleges that Defendant held the Order in his office for about nine months before sending the Order to Plaintiff. [Id.] For his injuries, Plaintiff contends that was “injured inside [and] out, pain, suffering, and denial of freedom” as a result of Defendant's pre-signing the Conditional Order of Dismissal at case number 2017-cp-05-00184. [Id. at 6.] For his relief, Plaintiff seeks $6 million in damages because he is being detained illegally against his will. [Id.] Plaintiff makes similar allegations in his attachment to the Complaint. [Doc. 1-1 at 1-4.] Specifically, Plaintiff contends that Defendant committed an “act of perjury or concealment of a document coupled with [an] intentional scheme to defraud the court [which] justifies the setting aside of a judgment due to extrinsic fraud.” [Id. at 4.] Plaintiff also includes a copy of the Conditional Order of Dismissal [id. at 8-19], as well as a letter from the South Carolina Office of Disciplinary Counsel in response to a complaint Plaintiff filed against Defendant with that Office [id. at 20-21].
The Court takes judicial notice of Plaintiff's state court records as well as other cases he has filed in his Court. Importantly, the undersigned notes that Plaintiff previously filed a habeas action under 28 U.S.C. § 2254 in this Court at case number 8:13-cv-1433, in which the Court granted summary judgment for the Respondent. See Utsey v. McCall, No. 8:13-cv-1433, 2014 WL 4825625, at *3 (D.S.C. Sept. 24, 2014). The Court summarized Plaintiff's criminal action and related appeals and collateral actions as follows:
See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”) (alteration omitted).
Petitioner was found guilty after a June 15, 1999, jury trial on a charge of armed robbery and was sentenced to 30 years in prison. Petitioner filed a direct appeal on September 7, 2000. The South Carolina Court of Appeals affirmed the conviction on November 20, 2000. Petitioner filed a petition for a rehearing on December 5, 2000, which was denied on January 30, 2001. Petitioner filed a petition for writ of certiorari to the South Carolina Supreme Court on April 2, 2001. The Supreme Court denied the petition on June 21, 2001, and issued the remittitur the next day. Petitioner filed a pro se application for Post Conviction Relief (“PCR”) on April 9, 2002. After an evidentiary hearing on January 9, 2003, the PCR court filed an order of dismissal on March 3, 2003. Petitioner did not appeal the dismissal. Petitioner filed three more PCR applications-on April 18, 2008, December 6, 2011, and November 19, 2012-each of which was denied as being untimely for having been filed past the statute of limitations.Utsey, 2014 WL 4825625, at *1 (citations to the record omitted). Plaintiff filed a fifth PCR action in the Bamberg County Court of Common Pleas on September 21, 2017, at case number 2017-cp-05-00184, which remains pending at this time. See Utsey v. State of South Carolina, No. 2017-cp-05-00184, available at https://publicindex.sccourts.org/ Bamberg/PublicIndex/PISearch.aspx (search by case number) (last visited Oct. 16, 2019).
Plaintiff's PCR actions are found at case numbers 2002-cp-05-000555, 2008-cp-05-00073, 2011-cp-05-00265, and 2012-cp-05-00210, in the Bamberg County Second Judicial Circuit Public Index, available at https://publicindex.sccourts.org/Bamberg/PublicIndex/ PISearch.aspx (last visited Oct. 16, 2019).
The present case arises from a PCR action filed by Plaintiff in the Orangeburg County Court of Common Pleas on October 27, 2016, at case number 2016-cp-38-1382. See Utsey v. State of South Carolina, No. 2016-cp-38-1382 (the “PCR Action”), available at https://publicindex. sccourts.org/Orangeburg/PublicIndex/PISearch.aspx (search by case number) (last visited Oct. 16, 2019). In that action, Judge Dickson issued a Conditional Order of Dismissal that was dated December 29, 2017, and entered on the docket on January 8, 2018. [Doc. 1-1 at 19.] Judge Dickson concluded that the action was subject to summary dismissal as it was successive and time-barred. [ Id. at 17-19.] Judge Dickson notified Plaintiff that the action would be dismissed in its entirety if Plaintiff did not show cause why the Order should not become final within twenty days from the date of service of the Order on Plaintiff. [Id. at 19.] Plaintiff filed a response to the Conditional Order of Dismissal on September 18, 2018. See PCR Action, Response to the Conditional Order of Dismissal, filed Sept. 18, 2018.
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411,417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Plaintiff filed this action pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the Complaint “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)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). As noted, although the court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it “failed to contain any factual allegations tending to support his bare assertion”). While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
Here, Plaintiff's Complaint is subject to summary dismissal because Defendant is immune from suit and because Plaintiff has failed to state a claim for relief. The Court will address each issue below.
Defendant is entitled to dismissal
Plaintiff alleges that Defendant violated his rights when he entered a Conditional Order of Dismissal in Plaintiff's PCR action. [Doc. 1 at 4-5.] Plaintiff also alleges that Defendant improperly held the Order of Dismissal and committed fraud. [ Id. at 4-5; Doc. 1-1 at 3.]
Defendant has absolute judicial immunity from this civil action and should be dismissed from this case. It is well settled that judges have absolute immunity from a claim for damages arising out of their judicial actions unless they acted have in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Whether an act is judicial or non-judicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13. Immunity presents a threshold question. See Harlow v. Fitzgerald, 475 U.S. 800, 818 (1982). Absolute immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Here, Plaintiff seems to allege that Defendant improperly entered an Order of Dismissal and held that Order for a period of nine months. These allegations relate to a judicial action. Thus, because the alleged misconduct of Defendant arose out of his judicial actions, judicial immunity squarely applies and should bar this lawsuit against him.
Plaintiff's claims are subject to dismissal
Further, the entire Complaint should be dismissed because it is frivolous and his claim for relief is barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff seeks monetary damages because of Defendant's allegedly unlawful actions in entering the Conditional Order of Dismissal. [Doc. 1 at 6.] Plaintiff also contends he is “being detained illegally, forcefully and against [his] will.” [Id.] To the extent Plaintiff may be seeking release from the custody of SCDC, release from prison is not available in this civil rights action. See Heck, 512 U.S. at 481 (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (explaining a challenge to the duration of confinement is within the core of habeas corpus). In this action, however, because Plaintiff is seeking money damages based on his allegedly unlawful confinement in SCDC, his claim is premature because he is currently serving a sentence for a conviction that has not yet been invalidated. In Heck, the Supreme Court pronounced,
. . . 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,
expunged by executive order, declared invalid by a state tribunal authorized to make such a 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.Id. Further, the Supreme Court stated that,
. . . 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.Id. This is known as the “favorable termination” requirement, which Plaintiff has not alleged he has satisfied. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008).
The Heck holding applies to this case. Plaintiff seems to allege that Judge Dickson improperly entered a Conditional Order of Dismissal, held the Order, and failed to provide Plaintiff with an opportunity to respond, resulting in his continued unlawful incarceration. However, Plaintiff does not allege that his conviction has been invalidated, for example, by a reversal on direct appeal or a state or federal court's issuance of a writ of habeas corpus. Accordingly, Plaintiff's claim is barred and should be dismissed as a right of action has not accrued.
The limitations period will not begin to run until the cause of action accrues. See Morris v. Cardillo, No. 0:10-cv-0443-JFA-PJG, 2010 WL 2722997, at *2 (D.S.C. Apr. 15, 2010), Report and Recommendation adopted by 2010 WL 2722992 (D.S.C. July 9, 2010).
CONCLUSION
Consequently, for the reasons stated above, it is recommended that the District Court dismiss this action without issuance and service of process pursuant to 28 U.S.C.§ 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972).
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015); Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend pursuant to Goode because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
Plaintiff's 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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).