Opinion
C/A 2:22-cv-3100-BHH-JDA
09-23-2022
Michael J. Coffy, Plaintiff, v. Wal-Mart, Nicholas Poplawski, Michael Felix Lee Dittrich, Douglas Richards, Brian Frances Robert Blaschke, Officer Hannon, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Michael J. Coffy (“Plaintiff”) brings this civil action pursuant to 42 U.S.C. § 1983, alleging Defendants violated his rights under the United States Constitution. [Doc. 1.] Plaintiff is proceeding in this action pro se and in forma pauperis under 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. For the reasons explained below, this action is subject to summary dismissal.
Plaintiff also named his brother, Marlin E. Coffy, as a Plaintiff in this action. However, “[i]t has been the practice in the district courts in the Fourth Circuit to not allow multiple pro se prisoner-plaintiffs to proceed together in a single action.” Battle v. S.C. Dep't of Corr., No. 2:18-cv-719-TMC, 2019 WL 926415, at *8 n.9 (D.S.C. Feb. 26, 2019) (collecting cases). Moreover, Marlin E. Coffy did not sign the Complaint and he has not paid the filing fee. As such, he is not a proper party to this action and will be terminated from the docket by a separate order.
BACKGROUND
Plaintiff is a pretrial detainee at the Al Cannon Detention Center in Charleston, South Carolina. [Doc. 1 at 2.] Plaintiff filed a Complaint on the standard court form. [Doc. 1.] In sum, Plaintiff alleges that he and his brother were racially profiled, discriminated against, framed, incriminated, and arrested for armed robbery. [Id. at 5, 11.] Plaintiff contends Defendants are all responsible for these actions and that they conspired to fabricate the armed robbery, that Officers Dittrich and Richards withheld evidence, that Officer Hannon entered false evidence, and that Wal-Mart employees lied, conspired, and fabricated information. [Id. at 12.]
Plaintiff contends that, on July 27, 2021, he and his brother, Marlin E. Coffy, went to a Wal-Mart in Mount Pleasant, South Carolina, where they were targeted by Wal-Mart loss prevention officers, Defendants Poplawski and Felix, because they looked suspicious. [Id. at 6.] Defendants Poplawski and Felix identified Plaintiff and his brother as “2 black men,” racially profiled them, and began to follow and watch them as they put food in their carts. [Id.] The Wal-Mart loss prevention officers went to the parking lot to write down the license plate and VIN number of Plaintiff's vehicle even though no crime had been committed. [Id.]
Plaintiff contends that Defendants Poplawski and Felix engaged in racial profiling, discrimination, incrimination, and fabrication of evidence to frame and entrap the Coffy brothers. [Id. at 7-8.] Plaintiff contends that Defendant Felix's repeated reference to the brothers as “2 black men” shows that the investigation was racially motivated. [Id.]
Plaintiff contends that Defendant Hannon entered tools from Plaintiff's vehicle into evidence. [Id. at 8.] Plaintiff contends that surveillance video shows both brothers leaving Wal-Mart with nothing and that Officer Hannon planted false evidence in order to frame the brothers for robbery. [Id.]
Plaintiff contends that Defendants Dittrich and Richards, both police officers, conspired to lie, fabricate, and frame the Coffy brothers and to entrap them for robbery. [Id. at 8-9.] Plaintiff contends that the officers' body cam video shows the officers counting out $1,080 in cash from Plaintiff's wallet on the hood of the patrol car but they did not mention the money in their written report, which prejudiced the brothers' defense. [Id. at 9.] Plaintiff contends the brothers did not intend to rob the Wal-Mart, and instead intended to purchase the food in their carts with the money that the police found. [Id.] Plaintiff contends Officers Richards and Dittrich intentionally withheld this evidence in order to “incriminate the brothers as two broke black men out to commit a crime.” [Id.]
For his relief, Plaintiff seeks money damages for pain and suffering, for actual and punitive damages, for every day spent incarcerated, for lost wages, for the costs and fees of filing the lawsuit, and for attorneys fees. [Id. at 12.] Specifically, Plaintiff requests $10 million in damages. [Id.] Plaintiff also asks that the Court “quash detainment” and immediately release him from incarceration. [Id.]
The Court takes judicial notice that Plaintiff has been charged in the Charleston County Court of General Sessions with the crime of armed robbery at case number 2021A101020344 arising from the incident at issue in the Complaint filed in this case. See Charleston County Ninth Judicial Circuit Public Index, available at https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search by case number “2021A101020344”) (last visited Sept. 21, 2022). Further, the Court takes judicial notice that Plaintiff has also been charged in the Berkeley County Court of General Sessions with the crime of armed robbery at case number 2021A1820500843, see Berkeley County Ninth Judicial Circuit Public Index, available at https://publicindex.sccourts. org/Berkeley/PublicIndex/PISearch.aspx (search by case number “ 2021A1820500843”) (last visited Sept. 21, 2022). Both charges remain pending against Plaintiff at this time.
See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that 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.'”).
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which 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 still be charged with screening 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.
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). However, even under this less stringent standard, the pro se pleading remains 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).
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). 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).
DISCUSSION
The 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) (quoting 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).
As noted, Plaintiff contends Defendants violated various civil rights. [Doc. 1 at 5.] The crux of this action, according to Plaintiff, is that Defendants, motivated by racial bias and animus, conspired together, lied, and fabricated evidence all to frame the Coffy brothers for a crime that they did not commit. [ Id. at 5-11.] Plaintiff contends he is entitled to $10 million in money damages, dismissal of his pending charges, and immediate release from custody. [Id. at 12.] Despite Plaintiff's contentions, this action is subject to summary dismissal for the reasons below.
Defendants entitled to dismissal
First, certain Defendants are entitled to summary dismissal because they are not state actors who may be sued under § 1983. Specifically, Defendants Wal-Mart, Poplawski, and Felix (the “Wal-Mart Defendants”) are each entitled to summary dismissal because they are not state actors for purposes of this § 1983 action.
As noted, in order to state a § 1983 claim, Plaintiff must allege that he was deprived of a constitutional right by a person acting under the color of state law. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). Stated differently, “[i]n order to be a proper party defendant in a § 1983 action, the defendant must be, or step into the role of, a public actor.” Palmore v. Wal-Mart, No. 9:08-cv-2484-GRA- BM, 2009 WL 1457136, at *3 (D.S.C. May 22, 2009), aff'd, 332 Fed.Appx. 863 (4th Cir. 2009). “Hence, as a private entity, Wal-Mart may only act under color of state law for purposes of a § 1983 claim if it was a wilful participant in joint action with the State or with an agent of the State.” Id. “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citation omitted).
Plaintiff has not alleged facts showing that the Wal-Mart Defendants are state actors. Further, Plaintiff has not alleged facts showing that the Wal-Mart Defendants were wilful participants in joint action with the police such that they are subject to liability under § 1983. “Just because employees of a private entity call the police to investigate suspicious activity or allow police officers to patrol its parking lots or common areas and/or arrest individuals on its property, does not make the private entity a public actor for purposes of a § 1983 claim.” Palmore, 2009 WL 1457136, at *4. Accordingly, Plaintiff's claims against the WalMart Defendants are not proper in this § 1983 action because they are not state actors, and they are therefore entitled to dismissal. See Grant-Davis v. Fortune, No. 2:15-cv-4211-PMD-MGB, 2015 WL 12868172, at *3 (D.S.C. Nov. 20, 2015) (“In the present case, Wal-Mart employees called the police to have a suspected shoplifter arrested, a situation that courts have repeatedly held does not constitute state action in most circumstances.”), Report and Recommendation adopted by 2015 WL 12868171 (D.S.C. Dec. 7, 2015), aff'd, 645 Fed.Appx. 288 (4th Cir. 2016).
Plaintiff's claims are subject to dismissal
Further, Plaintiff's Complaint as a whole is subject to dismissal for the reasons below.
Abstention under Younger
First, the Court should abstain from hearing Plaintiff's claims for injunctive relief. In this action, Plaintiff appears to challenge the charges pending against him in the Charleston County Court of General Sessions as well as his current detention in the Al Cannon Detention Center.
To the extent Plaintiff is seeking release from custody, such relief is not available in this civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (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). “Release from pretrial detention is simply not an available remedy in a § 1983 action.” El v. Fornandes, No. 2:19-cv-3045-RMG-MGB, 2019 WL 7900140, at *4 (D.S.C. Nov. 22, 2019) (explaining a plaintiff cannot use § 1983 to get out of jail), Report and Recommendation adopted by 2019 WL 6712057 (D.S.C. Dec. 10, 2019).
Further, to the extent Plaintiff seeks injunctive relief related to his pending state court criminal charges, including dismissal of those charges, such claims are not properly before this Court based on the Younger abstention doctrine. Liberally construed, the Complaint appears to assert that the pending state court criminal proceedings against Plaintiff are improper and violate his constitutional rights. Plaintiff asks that the charges against him be dismissed. Granting Plaintiff's requested relief, however, would require this Court to interfere with or enjoin the pending state court criminal proceedings against him. As discussed below, because a federal court may not award relief that would affect pending state proceedings absent extraordinary circumstances, this Court should abstain from interfering with it.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996) (en banc) (internal quotation marks omitted). The Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44; see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (explaining the circumstances when Younger abstention is appropriate).
From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled the following test to determine when abstention is appropriate: “[1] there are ongoing state judicial proceedings; [2] the proceedings implicate important state interests; and [3] there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Hum. Rels., 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Here, Plaintiff is involved in ongoing state court criminal proceedings, and Plaintiff asks this Court to award relief for alleged constitutional violations related to his pending criminal actions; thus, the first element is satisfied. The second element is satisfied for reasons the Supreme Court has explained: “[T]he 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.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). The third element is also satisfied, as the Supreme Court has noted “that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Gilliam, 75 F.3d at 903 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
A ruling in Plaintiff's favor in this case would call into question the validity of the state court criminal proceedings against him and would significantly interfere with those ongoing state proceedings. See Younger, 401 U.S. at 43-45; Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989) (“[F]ederal courts should abstain from the decision of constitutional challenges to state action, however meritorious the complaint may be, ‘whenever [the] federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.'”) (citation omitted); Washington v. Tilton, No. 2:10-cv-997-HFF-RSC, 2010 WL 2084383, at *1 (D.S.C. May 19, 2010). This Court finds that Plaintiff can adequately litigate his federal constitutional rights in the state court proceedings. Thus, this Court should abstain from adjudicating Plaintiff's claims.
Failure to State a Claim
Further, Plaintiff's Complaint is subject to dismissal because his allegations fail to state a claim for relief that is plausible, and he is therefore not entitled to any money damages or any other relief that he seeks. Liberally construed, the Complaint appears to assert claims for false arrest, false imprisonment, and/or malicious prosecution in violation of the Fourth Amendment, due process in violation of the Fifth and Fourteenth Amendments, discrimination, and civil conspiracy. The Court will address each of these claims in turn below.
Fourth Amendment Claims
First, to the extent Plaintiff is asserting claims for unlawful search and seizure, false arrest, false imprisonment, malicious prosecution, and/or any other claim arising under the Fourth Amendment, his claims are without merit. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Section 1983 actions premised on claims including false arrest, false imprisonment, and malicious prosecution are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”).
Here, Plaintiff has failed to plead the minimum facts necessary to state a cognizable claim for a Fourth Amendment violation. This is so because, under § 1983, a public official cannot be charged with unlawful search and seizure, false arrest, or malicious prosecution when the search and arrest are based on probable cause. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“The Fourth Amendment is not violated by an arrest based on probable cause.”). Moreover, “an indictment, ‘fair upon its face,' returned by a ‘properly constituted grand jury,' conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also Provet v. S.C., No. 6:07-cv-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (explaining § 1983 claims of false arrest and malicious prosecution were precluded based on the filing of an indictment). Here, the grand jury has filed an indictment, number 2021GS1003906, for the armed robbery charge pending against Plaintiff in the Charleston County Court of General Sessions. The indictment acts as a bar to Plaintiff's claims for money damages as to that charge and his present incarceration in the Al Cannon Detention Center. See, e.g., El Bey v. Brown, No. 3:20-cv-2077-JMC-SVH, 2020 WL 5948335, at *2 (D.S.C. June 29, 2020) (“A grand jury indictment is affirmative evidence of probable cause sufficient to defeat claims for malicious prosecution and false arrest under § 1983.”), Report and Recommendation adopted by 2020 WL 4038267 (D.S.C. July 17, 2020).
Plaintiff also alleges that various Defendants fabricated, concealed, or planted evidence. To the extent Plaintiff alleges he was falsely arrested or is falsely imprisoned based on fabricated evidence, he has failed to state a claim for relief. The Fourth Circuit has recognized that the fabrication of evidence by an officer “‘acting in an investigating capacity'” constitutes a violation the Fourth Amendment, see Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005), noting that such a claim is properly “founded on a Fourth Amendment seizure that incorporates elements of the analogous common law tort of malicious prosecution,” Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000). However, false statements alone do not “run afoul of the Fourth Amendment.” Massey v. Ojaniit, 759 F.3d 343, 357 (4th Cir. 2014). Instead, “[t]o contravene the Constitution, ‘the false statements or omissions must be “material,” that is, “necessary to the finding of probable cause.”'” Id.
Here, a grand jury has issued an indictment, which conclusively determines the existence of probable cause. Although the indictment does not insulate Defendants from liability for fabricating evidence, id., Plaintiff has failed to allege facts showing that any fabricated or planted evidence was material to the finding of probable cause. “Plaintiff provides no facts other than this bare assertion that [his arrest and pending charges are] based on fabricated evidence.” Johnson v. Harvey, No. 1:18-cv-2154-JFA-PJG, 2018 WL 4376368, at *3 (D.S.C. Aug. 20, 2018), Report and Recommendation adopted by 2018 WL 4354350 (D.S.C. Sept. 12, 2018). Indeed, Plaintiff appears to conclusory assert that the entire incident was fabricated in order to wrongfully charge him and his brother. As to Plaintiff's assertions that the police failed to properly document the cash that Plaintiff and his brother had in their possession and improperly documented tools that were in Plaintiff's vehicle, the Complaint does not explain how these “fabrications” were material to the grand jury's determination of probable cause that Plaintiff attempted or committed an armed robbery at the Wal-Mart.
Therefore, any Fourth Amendment claims related to the pending armed robbery charge and Plaintiff's incarceration are subject to summary dismissal.
Fifth and Fourteenth Amendments, Due Process
Likewise, to the extent that Plaintiff's allegations may be construed as due process claims under the Fifth and Fourteenth Amendments, any such claims fail because Plaintiff has not alleged facts showing he was subjected to any deprivation of due process to support such a claim. To the extent Plaintiff is alleging a procedural due process violation with regard to the charges pending against him, the investigation into the crimes he is charged with, or his purportedly unlawful incarceration, he has failed to allege facts to state a claim for relief that is plausible. Additionally, such claims are subject to dismissal for the reasons already stated-the Court should abstain from deciding such claims under Younger and the valid indictment against him acts as a bar to any such claims.
Discrimination
Plaintiff's claim that he was wrongly arrested and charged with a crime stems primarily from his assertion that Defendants were racially motivated to fabricate a crime because the Coffy brothers are black. To state an equal protection claim for race discrimination under § 1983, “a plaintiff must plead sufficient facts to ‘demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.'” Green v. Maroules, 211 Fed.Appx. 159, 162 (4th Cir. 2006).
Here, Plaintiff's sole allegation that his race was in any way a motivating factor in the actions of Defendants is his assertion that Defendants repeatedly made reference to “2 black men.” [Doc. 1 at 8.] Such an allegation alone, however, is insufficient to show that Defendants' actions towards Plaintiff “were tainted by any race-based motivations” or that Plaintiff was “treated differently from similarly-situated white suspects.” Waller v. City of Danville, 212 Fed.Appx. 162, 174 (4th Cir. 2006). In short, Plaintiff has not alleged facts showing that race discrimination was a motivating factor behind Defendants' actions. See, e.g., Gooden v. Howard Cnty., Md., 954 F.2d 960, 970 (4th Cir. 1992) (explaining “the respective racial identities of the individuals involved,” without more, does not give rise to a claim where the defendants acted upon the basis of a citizen's complaint of a crime).
Civil Conspiracy
Finally, Plaintiff appears to assert a claim against Defendants for civil conspiracy. To establish a conspiracy claim under § 1983, a plaintiff must allege facts showing “that the [defendants] acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right.” Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996). “An essential element for a claim of conspiracy to deprive Plaintiff of a constitutional right is an agreement to do so among the alleged co-conspirators. Without an agreement, the independent acts of two or more wrongdoers do not amount to a conspiracy.” Dewitt v. Ritz, No. DKC 18-cv-3202, 2020 WL 510159, at *3 (D. Md. Jan. 31, 2020) (citation omitted).
Here, Plaintiff fails to allege facts showing the required agreement among Defendants, and he fails to allege facts showing that Defendants participated in any conspiracy. Further, “[b]ecause [Plaintiff] has not stated a claim for deprivation of a constitutional right,” as explained above, his conspiracy claim must be dismissed. Massey, 759 F.3d at 358; see Glassman v. Arlington Cnty., VA, 628 F.3d 140, 150 (4th Cir. 2010) (explaining that where the defendants' actions did not result in the deprivation of a constitutional right, the plaintiff's civil conspiracy claim is properly dismissed).
In sum, Plaintiff has failed to allege facts to state a cognizable constitutional claim, and this action is therefore subject to summary dismissal on this basis in addition to the other reasons state above.
RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court dismiss this action without issuance and service of process.
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 Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at * (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend 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 n.7 (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). Here, Plaintiff's state criminal charges remain pending at this time, and he can raise the issues complained of herein with the state court.
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
250 East North Street, Suite 2300 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).