Opinion
C. A. 6:21-cv-00164-JD-KFM
04-16-2021
Cederick Wise, Plaintiff, v. Brian Kendall, Teisha Brown, Ann Shepard, Tamara Ravenell, Sherman L. Anderson, Bryan Stirling, John Doe 1, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a state prisoner, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on February 19, 2021 (doc. 9). The case is in proper form. Nevertheless, upon review, the plaintiff's complaint is subject to summary dismissal.
ALLEGATIONS
The plaintiff, a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action alleging that his sentence has been calculated incorrectly (doc. 9). As an initial matter, the court takes judicial notice of the plaintiff's criminal convictions in the Sumter County General Sessions Court. See Sumter County Public Index, https://publicindex.sccourts.org/Sumter/PublicIndex/PISearch.aspx (enter the plaintiff's name and H536834, H536835, H538107, H538108) (last visited April 15, 2021).
Phillips v. Pitt Cnty. 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 ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
The plaintiff alleges violations of his First, Fifth, and Fourteenth Amendment rights because his sentence has been incorrectly calculated (doc. 9 at 4). He seeks supervisory liability against the defendants because they are responsible for the incorrect calculation of his sentence, which violates his due process rights (id. at 15-17). The plaintiff alleges that when he arrived at Lieber Correctional Institution (“Lieber”) he met with Ms. Ravenell, who indicated that the plaintiff's maxout date was August 21, 2022 (id. at 17). During that meeting, the plaintiff showed Ms. Ravenell the paperwork regarding his sentence and informed her that she had mis-calculated his maxout date because it should be August 17, 2021 (id. at 17-18). The plaintiff also alleges that SCDC is incorrectly indicating that he was sentenced to 30 (instead of 21) years for his kidnapping charge, which is affecting the calculation of his sentence (id. at 23-24).
The plaintiff's injuries include trouble sleeping, weight loss, and mental anguish and psychological harm (id. at 28). For relief, the plaintiff seeks money damages as well as a permanent injunction requiring the defendants to follow their oath of office and correct his maxout date (id. at 14, 28-29).
STANDARD OF REVIEW
The 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, the plaintiff is a prisoner under the definition of 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 the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's 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 (2007) (per curiam). 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).
This complaint is filed 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. Nevertheless, the plaintiff's complaint is subject to summary dismissal.
Sentence Calculation
To the extent the plaintiff's complaint can be liberally construed as seeking an order from this court instructing the defendants to correct the plaintiff's sentence start date and/or sentence maxout date, such a request cannot be granted in this matter. Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a complaint under the Civil Rights Act, § 1983. Muhammadv. Close, 540 U.S. 749, 750 (2004); see Preiserv. Rodriguez, 411 U.S. 475, 487-90 (1973) (an application seeking release from custody is an application for habeas corpus and is not an available remedy under the Civil Rights Act). “Habeas corpus, and not § 1983, is the exclusive federal remedy for state prisoners seeking actual release from confinement, ” Griffin v. Baltimore Police Dep't, 804 F.3d 692, 694-95 (4th Cir. 2015) (citing Preiser, 411 U.S. 475, 487-90), and “requests for relief turning on circumstances of confinement may be presented in a § 1983 action, ” Muhammad, 540 U.S. at 750. As such, here, to the extent the plaintiff alleges that the sentence length, start date, or that the sentence calculation used by SCDC is incorrect, seeking correction of his maxout date, such relief is not available in this civil rights action. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (noting 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” (internal citation omitted)).
The plaintiff's complaint is barred by Heck v. Humphrey
To the extent the plaintiff seeks money damages from the defendants for the incorrect calculation of his sentence, his claims are barred by Heck. In Heck, the United States Supreme Court held that in order to recover damages for imprisonment in violation of the Constitution, the imprisonment must first be successfully challenged. The Court stated:
We hold 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, 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. at 486-87 (footnote omitted); see also Edwards v. Balisock, 520 U.S. 641 (1997) (the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies which necessarily imply the invalidity of the judgment). This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). The plaintiff's complaint includes no indication that his sentence as calculated has been overturned through a direct appeal, state post-conviction relief application, habeas corpus proceeding or otherwise (see doc. 9). Moreover, as noted, judicially-noticed, publicly-available online records for the Sumter County General Sessions Court indicate that the plaintiff pled guilty to one count of strong arm robbery (case number H536834), two counts of kidnapping (case numbers H536835 & H538107), and grand larceny (case number H538108). See Sumter County Public Index, (enter the plaintiff's name and H536834, H536835, H538107, H538108) (last visited April 15, 2021). The plaintiff's convictions do not indicate a favorable termination; thus, his damages claim is barred by Heck.
The holding in Wilson v. Johnson, 535 F.3d 262 (4th Cir. 2008) does not apply to the plaintiff's case because he is still incarcerated. Wilson, 535 F.3d at 267-68 (finding that the Heck bar does not apply when a plaintiff is no longer in custody and thus cannot seek habeas relief).
State Law Claims
To the extent the plaintiff asserts state law claims, the court should abstain from exercising jurisdiction over such claims. Such claims can be considered by this court through the exercise of “supplemental jurisdiction, ” which allows federal courts to hear and decide state law claims along with federal claims. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 387 (1998); 28 U.S.C. § 1367. However, federal courts are permitted to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” Here, as noted, in addition to being barred by Heck, the plaintiff may not seek release from prison in this action. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Com. Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). As noted in more detail above, the plaintiff may not seek release from prison in this action and his request for damages is barred by Heck. Thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend his complaint. Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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).