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C/A No. 6:18-1762-MGL-KFM (D.S.C. Jul. 27, 2018)

C/A No. 6:18-1762-MGL-KFM


Erick Eton Hewins, #297728, Plaintiff, v. Scott Gardner, Rachel Hall, Sgt. Ben Cothran, Chase Hunter Harbin, and Joyce Monts, Defendants.


The plaintiff, proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights, as well as state law claims. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local 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 is a pretrial detainee in the Greenville County Detention Center (doc. 1 at 2). A review of the public record indicates that the plaintiff was arrested on August 9, 2010 and charged with drug trafficking. See Greenville County Thirteenth Judicial Circuit Public Index, https://www2.greenvillecounty.org/SCJD/PublicIndex/PISearch.aspx (last visited July 26, 2018; see also Philips v. Pitt Cnty. Mem.Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."). Following a jury trial on January 16, 2013, he was sentenced to a term of imprisonment of 25 years. The record further reflects that on April 26, 2016, the plaintiff filed an application for post-conviction relief ("PCR"). On November 4, 2016, the PCR court granted the plaintiff a new trial based upon his claim of ineffective assistance of counsel. The state's appeal of the PCR court's ruling was denied. The state's petition for a writ of certiorari in the Supreme Court of South Carolina was likewise denied on May 3, 2018 (doc. 1 at 13). The plaintiff alleges he was then transferred from state prison back to the Greenville County Detention Center on June 7, 2018, to await his retrial. The court notes that this is the plaintiff's second attempt to bring claims allegedly arising out of his August 9, 2010 arrest for drug trafficking. (See Hewins v. Hardin, et al, C/A No. 6:17-2204-MGL (August 18, 2017)).

Case Number M383852, State of South Carolina v. Erick Eton Hewins, See Greenville County Thirteenth Judicial Circuit Public Index, https://www2.greenvillecounty.org/SCJD/PublicIndex/CaseDetails.aspx?(last visited July 26, 2018).

Erick Hewins v. State of South Carolina, 2016CP2302656, See Greenville County Thirteenth Judicial Circuit Public Index https://www2.greenvillecounty.org/SCJD/PublicIndex/CaseDetails.aspx? (last visited July 26, 2018).

On November 29, 2017, the court, relying on the Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994), dismissed the action without prejudice because, the plaintiff had not shown his conviction had been overturned. At the time of this suit, although the PCR court had granted the plaintiff a new trial, the State of South Carolina had filed petition for a writ of certiorari in the Supreme Court of South Carolina and the petition was pending.

The plaintiff filed this action on June 27, 2018 alleging claims of abuse of process, legal malpractice, malicious prosecution, false arrest, false imprisonment, illegal stop and search, assault and battery, prosecutorial misconduct, outrageous misconduct by the government, loss of society, freedom of speech, conspiracy to commit malicious prosecution, and harassment arising out of his August 9, 2010 arrest. (doc. 1 at 8). In the complaint, the plaintiff names as defendants Greenville City Police Officers Scott Gardner, Rachel Hall, and Sgt. Ben Cothran; his trial attorney, Chase H. Harbin; Assistant Solicitor Joyce Monts; and the City of Greenville. He states he is suing the defendants in their official and personal capacities. The plaintiff alleges, inter alia, that he was convicted due to his trial attorney's failure to object to an illegal search and seizure conducted by Gardner and Hall (Id. at 9-10). He also contends that Cothran conspired with Gardner and Hall to help get him convicted. Further, he contends that Monts failed to correct perjured testimony and withheld evidence during his trial (Id. at 11). As relief he seeks monetary damages.

The City of Greenville was dismissed pursuant to the plaintiff's notice of voluntary dismissal (docs. 18, 19). --------

The undersigned issued an order on July 3, 2018, directing the plaintiff to bring his case into proper form by providing service documents for the City of Greenville and answering the Court's Special Interrogatories (Id. at 10). On July 11, 2018, the plaintiff substantially complied with the court's proper form order (Id. at 13-14).


Pursuant to the provisions of 28 § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review the complaint for relief and submit findings and recommendations to the district court. 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).

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, 94 (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). In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

The complaint is filed pursuant to 42 U.S.C. § 1983. 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).


Prosecutorial Immunity

To the extent the plaintiff seeks monetary damages against Assistant Solicitor Monts, the plaintiff's claims are subject to dismissal under the well-established legal doctrine of prosecutorial immunity. The plaintiff's complaint raises claims regarding the investigation and prosecution of criminal charges against him. In South Carolina, regional prosecutors are called Solicitors and Assistant Solicitors. See S.C. Const., art. V, § 24; S.C. Code Ann, § 1-7-310. Absolute immunity " . . . is available for conduct of prosecutors that is 'intimately associated with the judicial phase of the criminal process.'" See Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (citing Imbler v. Pachtman, 424 U.S. 409 (1976)). Prosecutors have absolute immunity for activities in or connected with judicial proceedings, such as a criminal trial, bond hearings, bail hearings, grand jury proceedings, and pre-trial "motions" hearings. See Van de Kamp v. Goldstein, 555 U.S. 335 (2009). It is well settled that prosecutors are absolutely immune from liability for damages based on their decisions about "whether and when to prosecute," Lyles v. Sparks, 79 F.3d 372, 377 (4th Cir.1996), and whether to go forward with a prosecution. See Springmen v. Williams, 122 F.3d 211, 212-13 (4th Cir.1997). Because the plaintiff is not entitled to recover any damages from Monts based on her performance of these functions as a prosecutor, the plaintiff's claims against defendant Monts should be dismissed.

Dismissal of Attorney Harbin

To the extent the plaintiff seeks to assert a claim against defendant Harbin under § 1983, he fails to state a claim. It is well settled that an attorney, whether retained, court-appointed, or a public defender, does not act under color of state law when performing traditional functions as counsel. See Polk County v. Dodson, 454 U.S. 312, 317-324 & nn. 8-16 (1981) (public defender); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir.1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir.1976) (private attorney). See also Fleming v. Asbill, 42 F.3d 886, 890 (4th Cir.1994) ("Private lawyers do not act 'under color of state law' merely by making use of the state's court system"); Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir.1975) ("[i]t is established that a private attorney, while participating in the trial of private state court action, is not acting under color of state law").

Gardner , Hall and Cothran

As to the remaining defendants, although the plaintiff states that he "got his conviction overturned" (doc. 1 at 14), he is still awaiting trial on the same charges that he states were overturned by the PCR court. If the plaintiff is once again convicted, he will not be entitled to seek monetary damages for the claims he sets forth in the instant action until such time as the conviction has been declared invalid. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which held:

. . . in order to recover damages for allegedly unconstitutional . . . imprisonment or 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 writ of habeas corpus, 28 U.S.C. § 2254 . . .

, at 486-487.

Here, since the criminal prosecution remains pending, Heck does not yet apply. See Wallace v. Kato, 549 U.S. 384 (2007) (Heck rule applies only when there has been a conviction or sentence that has not been invalidated, not to pending criminal charges). In this action, the plaintiff seeks monetary damages and asks the court to make determinations essentially identical to the determinations that must be made by the state court in his pending criminal case. As such, proceeding in this case in federal court now would result in simultaneous litigation of the same issues and potentially interfere with the pending state court proceedings.

Federal courts are authorized to stay civil rights claims attacking the legality of a detainee's arrest, prosecution, and detention until such time as the allegedly improper state prosecution has been concluded. Wallace at 393-94 ("If a plaintiff files a false-arrest claim before he has been convicted [or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial], it is within the power of the district court . . . to stay the civil action until the criminal case . . . is ended.").

Therefore, in accordance with the principals set forth in Heck and Wallace, the plaintiff's civil rights claims should be stayed pending the outcome of his current criminal prosecution. In addition to asserting claims under § 1983, the plaintiff asserts state law claims. Because this court's jurisdiction over the plaintiff's state law claims is contingent on the existence of the plaintiff's § 1983 claim, it is necessary to stay the proceedings with respect to the state law claims as well.


Based on the foregoing, it is recommended that the plaintiff's claims against defendants Monts and Harbin be dismissed, and that his case be stayed as to defendants Gardner, Hall, and Cothran. It is further recommended that the plaintiff be ordered to notify this court every three months as to the status of his state criminal case.


s/ Kevin F. McDonald

United States Magistrate Judge July 27, 2018
Greenville, South Carolina

The plaintiff's attention is directed to the important warning 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

300 East Washington Street

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).