Opinion
C/A No. 6:20-cv-02283-RMG-KFM
10-28-2020
Edward E. Dewitt, Plaintiff, v. Roger Tilton, Defendant.
REPORT OF MAGISTRATE JUDGE
The plaintiff, a pretrial detainee 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.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on June 17, 2020 (doc. 1). On July 21, 2020, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with fourteen days to file an amended complaint and correct the deficiencies noted in the order (doc. 9). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 7-8). On August 6, 2020, the plaintiff's amended complaint was entered on the docket (doc. 17). In it, the plaintiff abandoned his initial conditions of confinement claims and named a new defendant who he asserted violated his constitutional rights when he was arrested on January 28, 2020 (id.). After reviewing the updated allegations, on October 8, 2020, the undersigned issued an order informing the plaintiff that his amended complaint was subject to dismissal as drafted and providing him with fourteen days to file a second amended complaint and correct the deficiencies noted in the order (doc. 21). The plaintiff was informed that if he failed to file a second amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 10). On October 19, 2020, the order was returned to the court as undeliverable mail and stamped, "return to sender refused unable to forward return to sender" (doc. 24). The plaintiff has not provided the Court with a new address at which he receives mail and has failed to file a second amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
The plaintiff is no longer listed as in the custody of the Florence County Detention Center; thus, it appears that the mailing was refused based upon the plaintiff's release. See Florence County Detention Center - Inmates, https://booking.fcso.org/inmates (last visited October 28, 2020).
ALLEGATIONS
The plaintiff, who was a pretrial detainee at the Florence County Detention Center ("the Detention Center"), contends that the defendant violated his Fourth and Eighth Amendment Rights during his arrest on January 28, 2020 (doc. 17 at 4, 5). As an initial matter, the court takes judicial notice of the plaintiff's proceedings in the General Sessions Court of Florence County. See Florence County Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2020A2110600004, 2020A2110600005) (last visited October 6, 2020).
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.'").
On January 28, 2020, the plaintiff contends that he was asleep on the couch in a residence belonging to his friend's father ("the residence") when Inv. Tilton, along with a team of officers, without a warrant, busted into the residence and arrested the plaintiff (doc. 17 at 5, 6, 7-8). The plaintiff further contends that Inv. Tilton allowed unidentified officers to use excessive force during the plaintiff's arrest (id. at 5, 7-8). The plaintiff alleges that when the police burst into the residence and ordered him to get to the floor to be arrested, he complied and did not resist (id. at 7-8). Despite not resisting, the plaintiff alleges that he was slammed to the floor by officers and that another officer punched him while handcuffing him (id.). The plaintiff further contends that while he was being handcuffed, there were several other officers punching and kicking him (id.).
The plaintiff contends that he lost consciousness and awoke to Inv. Tilton taking pictures of his injuries, which were then sent to someone else (id. at 4, 8-9). The plaintiff received medical treatment at the emergency room where a Cpl. Barnes took additional pictures of his injuries (id. at 10). The plaintiff contends that he is currently being held without bond in the Detention Center and that his injuries require him to remain heavily medicated (id. at 11).
As noted above, the Detention Center reports that the plaintiff is no longer in custody there.
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. However, the plaintiff's amended complaint is subject to summary dismissal.
Abandoned Claims
As an initial matter, as noted above, the plaintiff's amended complaint omitted his conditions of confinement claims as well as defendants Teressa Cunningham, Felisha Wilson, Hope Hatchell, and Eric McDaniel (see doc. 17). Thus, it appears that the plaintiff has abandoned these claims. The plaintiff was warned that an amended complaint replaces the complaint and "should be complete in itself (doc. 9 at 7-8 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims. To the extent the plaintiff did not intend to abandon those claims, for the reasons set forth in the court's prior order, the claims would still be subject to summary dismissal (see doc. 9 at 3-7). Younger Abstention
With respect to the plaintiff's assertion that his rights were violated when he was arrested by Inv. Tilton, the plaintiff is, in essence, requesting that this court interfere with or enjoin the pending state criminal prosecution against him (see generally doc. 17). On the date in question, the plaintiff was arrested on two counts of murder, and those charges remain pending in the Florence County Court of General Sessions. See Florence County Public Index (enter the plaintiff's name and 2020A2110600004, 2020A2110600005) (last visited October 28, 2020). Because a federal court may not award injunctive relief that would affect pending state criminal 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 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). Younger 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 43-45; 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 Fourth Circuit Court of Appeals 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 Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).
Here, the first criterion is met, as the plaintiff is involved in ongoing state criminal proceedings. As for the second criterion, the Supreme Court has stated that 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." Kelly v. Robinson, 479 U.S. 36, 49 (1986). The Court also addressed the third criterion in noting "'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 904 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)). Here, the plaintiff can challenge the force used to effectuate his arrest as well as the warrantless search and seizure in his pending criminal proceedings. Moreover, the plaintiff has not made a showing of "extraordinary circumstances" justifying federal interference with the state proceedings. See Robinson v. Thomas, 855 F.3d 278, 286 (4th Cir. 2017) ("A federal court may disregard Younger's mandate to abstain from interfering with ongoing state proceedings only where 'extraordinary circumstances' exist that present the possibility of irreparable harm."). Therefore, to the extent the plaintiff seeks to enjoin the pending state criminal proceedings against him, this court should abstain from hearing this action.
As for the plaintiff's damages claims, federal courts typically stay rather than dismiss claims for money damages during the pendency of the state court proceedings. See Wallace v. Cato, 549 U.S. 384, 393-94 (2007). Nevertheless, dismissal rather than a stay is appropriate when the plaintiff's damages claims are "plainly barred" for other reasons. See Nivens v. Gilchrist, 444 F.3d 237, 248-50 (4th Cir. 2006). Here, as set forth in detail below, the plaintiff's claims are barred for other reasons; thus, the claims are subject to dismissal.
The plaintiff's complaint should be dismissed
Fourth Amendment Claim
The plaintiff's Fourth Amendment false arrest and unreasonable search and seizure claims against Inv. Tilton are subject to summary dismissal. Section 1983 actions premised on unreasonable seizure, malicious prosecution, false arrest, and/or false imprisonment 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").
Under § 1983, a public official cannot be charged with false arrest when an arrest is based on probable cause. See Graham v. Connor, 490 U.S. 386, 396 (1989) (finding no Fourth Amendment violation when an arrest is 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., C/A No. 6:07-1094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (section 1983 claims of false arrest and malicious prosecution were precluded because of indictment). This Court, as noted above, has taken judicial notice of the plaintiff's state criminal proceedings, including grand jury indictments for the charges leading to the plaintiff's arrest on January 28, 2020. See Florence County Public Index (enter the plaintiff's name and 2020A2110600004, 2020A2110600005) (last visited October 28, 2020). The indictments act as a bar to the plaintiff's false arrest claim against Inv. Tilton and it is subject to summary dismissal.
To the extent the plaintiff's amended complaint can be construed as alleging that Inv. Tilton's warrantless entry of the residence (where the plaintiff was sleeping on the couch) violated the plaintiff's Fourth Amendment rights, the claim is subject to summary dismissal because the plaintiff has not plausibly alleged a legitimate expectation of privacy at the residence. The Fourth Amendment provides that the people are "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. However, before a search can be challenged, the individual seeking to challenge a search must have a legitimate expectation of privacy in the property or place being searched. United States v. Ferebee, 957 F.3d 406, 412 (4th Cir. 2020). Overnight guests or frequent visitors at an apartment may have a legitimate expectation of privacy in the apartment even if not on the lease, Minn. v. Olson, 495 U.S. 91, 95-100 (1990); Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir. 1996); however, being located inside another's home in and of itself does not give a visitor standing under the Fourth Amendment to challenge a warrantless entry.
Here, the plaintiff's status as a visitor sleeping on the couch at the residence, which belonged to a friend's father, does not alone provide a basis for finding that the plaintiff had an expectation of privacy, or standing, to challenge Inv. Tilton's warrantless entry. Although the plaintiff asserts that he was sleeping on the couch, he does not allege any facts supporting a finding that he was a frequent visitor or overnight guest, which is considered in order for him to have an expectation of privacy at the residence. See United States v. Macon, C/A No. 2:16-cr-00121-DCN, 2017 WL 2618824, at *2-3 (D.S.C. June 16, 2017). As such, the plaintiff's Fourth Amendment claims are subject to summary dismissal.
Excessive Force Claim
The plaintiff's excessive force claim against Inv. Tilton is also subject to summary dismissal. Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable . . . seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989) (internal citations omitted). The Fourth Amendment's "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an "allowance for the fact that police officers are often forced to make split-second" decisions about the amount of force necessary in a particular situation. Id. at 396-97. The Court utilizes the following factors in evaluating the totality of the facts and circumstances of excessive force claims, such as the one alleged herein: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
However, the plaintiff does not allege that Inv. Tilton was involved in the alleged use of excessive force; instead, the plaintiff contends that Inv. Tilton took pictures of the plaintiff's injuries afterwards and appears to assert that Inv. Tilton was responsible for the actions of the other officers based upon supervisory liability. As such, to the extent the plaintiff asserts that Inv. Tilton violated his rights by failing to supervise other officers when the plaintiff was arrested, the plaintiff's claims are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that "Section 1983 will not support a claim based on a respondeat superior theory of liability" (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was "so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;" and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 F. App'x 78, 80 (4th Cir. 2013). The plaintiff has not alleged how or in what capacity Inv. Tilton was responsible for the amount of force used in his arrest, especially since his allegations against Inv. Tilton focus on actions after the excessive force incident, such as documenting his injuries. See Ford v. Stirling, C.A. No. 2:17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C.A. No. 0:10-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010). As such, the plaintiff's excessive force claim against Inv. Tilton is also subject to dismissal.
RECOMMENDATION
By order issued October 8, 2020, the undersigned provided the plaintiff an opportunity to correct the defects identified in his amended complaint and further warned the plaintiff that if he failed to file a second amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 21). The plaintiff failed to file a second amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge October 28, 2020
Greenville, South Carolina
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).