Opinion
C. A. 2:23-00157-BHH-MHC
05-16-2023
Christopher J. France, Plaintiff, v. County of Charleston, Alice A. Richter, Thomas T. Hodges, Julie J. Armstrong, Emily G. Johnson, Victoria K. Rhea, Sara Von Schweinitz, Michael H. Leach, Lisa A. France, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by Plaintiff Christopher J. France, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order dated March 21, 2023, Plaintiff was notified of material defects in his Complaint and given the opportunity to cure the defects by filing an amended complaint. ECF No. 7. Plaintiff did not file an amended complaint.
I. BACKGROUND
Plaintiff's Complaint involves a South Carolina domestic relations case. He appears to challenge a temporary award of support payments pending resolution of a divorce action brought by his wife, asks this court to stop the garnishment of his wages, and requests that this court dismiss the state court family law case. Plaintiff also asserts sovereign-citizen type claims in which he alleges he is owed money from his wife and his wife's attorneys because he did not “consent” to the divorce action being brought in the South Carolina family court. He claims he sent attorney Emily Johnston an email informing her of his fee schedule and asserting she owed him $8,000,000 for allegedly depriving him of his rights, he sent some of the Defendants a “Notice of Claim” in which he requested $10,018,125 from each, and these Defendants allegedly failed to respond to Plaintiff's demands. See ECF No. 1 at 3-4, 7, 23; ECF No. 1-4.
Generally, a federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). In this instance, however, the undersigned does not have access to the relevant family court records referenced by Plaintiff. Accordingly, the undersigned relies on the representations in Plaintiff's Complaint regarding the events of the family court dispute for purposes of this report and recommendation.
Plaintiff asserts that he brings claims pursuant to 42 U.S.C. § 1983 (§ 1983) for violations of rights under Article I, Section 10, Clause 1 of the Constitution (the Contract Clause) as well as violations of his First, Fourth, Fifth, Sixth, Seventh, Ninth, and Thirteenth Amendment rights. ECF No. 1 at 4. He also asserts claims under South Carolina law for malicious prosecution, intentional infliction of emotional distress, abuse of process, and actual and constructive fraud.
As relief, Plaintiff requests compensatory and punitive damages, termination of the garnishment of his earnings, and dismissal of the state court domestic relations action. ECF No. 1 at 23. He also requests that a grand jury be empaneled to investigate Defendants for alleged criminal actions. Id. at 22.
II. STANDARD OF REVIEW
Although Plaintiff is not proceeding in forma pauperis, this filing is nonetheless subject to review pursuant to the inherent authority of this Court to ensure that a plaintiff has standing; subject matter jurisdiction exists; and the case is not frivolous. See Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. Aug. 22, 2012); Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-364 (2d Cir. 2000); see also Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (noting that although 28 U.S.C. § 1915(d) was not applicable where a pro se party filed an appeal and paid the filing fee, the court had “inherent authority, wholly aside from any statutory warrant, to dismiss an appeal or petition for review as frivolous”). “[I]t is well established that a court has broad inherent power sua sponte to dismiss an action, or part of an action, which is frivolous, vexatious, or brought in bad faith.” Brown v. Maynard, No. L-11-619, 2011 WL 883917, at *1 (D. Md. Mar.11, 2011) (citing cases). Therefore, a court has “the discretion to dismiss a case at any time, notwithstanding the payment of any filing fee or any portion thereof, if it determines that the action is factually or legally frivolous.” Id. As such, this case is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See, e.g., Carter v. Ervin, No. 14-0865, 2014 WL 2468351 (D.S.C. June 2, 2014); Cornelius v. Howell, No. 06-3387, 2007 WL 397449, at *3 (D.S.C. Jan. 8, 2007), report and recommendation adopted, 2007 WL 4952430 (D.S.C. Jan. 30, 2007), aff'd, 251 Fed.Appx. 246 (4th Cir. 2007).
Pre-screening under 28 U.S.C. § 1915 is inapplicable in pro se, non-prisoner, fee-paid cases. See Bardes v. Magera, No. 2:08-487-PMD-RSC, 2008 WL 2627134, at *8-10 (D.S.C. June 25, 2008) (finding persuasive the Sixth Circuit's opinion in Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999), that 28 U.S.C. § 1915(e)(2) is inapplicable to actions that are not pursued in forma pauperis).
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Jurisdiction
This action is subject to summary dismissal because this court lacks jurisdiction over Plaintiff's claims. Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Generally, a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. Here, Plaintiff has not alleged diversity jurisdiction. Nor, as discussed below, has Plaintiff alleged facts to indicate that this court has federal question jurisdiction.
Moreover, Plaintiff cannot establish diversity jurisdiction. A district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Plaintiff and all Defendants appear to be citizens of South Carolina. Although Plaintiff refers to himself as “an Ohioan,” his current address is in South Carolina. See ECF No. 1 at 5-6, 23. Thus, complete diversity is lacking and Plaintiff may not bring his claims pursuant to § 1332. Additionally, even if Plaintiff could establish diversity jurisdiction, this court should abstain from hearing a domestic relations action based on diversity jurisdiction. See Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir. 2006) (“We find additional support for our decision in this case in the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters.”) (citing Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980)). The Supreme Court has held that under the domestic relations exception, “‘divorce, alimony, and child custody decrees' remain outside federal jurisdictional bounds[.]” Marshall v. Marshall, 547 U.S. 293, 308 (2006) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 703-04 (1992)); see also Wasserman v. Wasserman, 671 F.2d 832, 834 (4th Cir. 1982) (“diversity jurisdiction does not include the power to grant divorces, determine alimony or support obligations, or decide child custody rights”).
To the extent that Plaintiff is attempting to appeal the results of a ruling in the state family court action to this court, the current action should be dismissed because federal district courts do not hear “appeals” from state court actions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983) (a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see also Hulsey v. Cisa, 947 F.3d 246 (4th Cir. 2020). To rule in favor of Plaintiff on claims filed in this action may require this court to overrule and reverse orders and rulings made in the state court. Such a result is prohibited under the Rooker-Feldman doctrine. See Davani v. Virginia Dep't. of Transp., 434 F.3d 712, 719-720 (4th Cir. 2006); see also Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293-294 (2005); Jordahl v. Democratic Party of Va., 122 F.3d 192, 201 (4th Cir. 1997).
An appeal of a final order of the South Carolina family court is to the South Carolina Court of Appeals. See S.C. Code Ann. § 63-3-630(A) (“Any appeal from an order, judgment, or decree of the family court shall be taken in the manner provided by the South Carolina Appellate Court Rules.”); Rule 203(b)(3), SCACR.
Appeals of orders issued by lower state courts must go to a higher state court. Secondly, the Congress, for more than two hundred years, has provided that only the Supreme Court of the United States may review (review is discretionary by way of a writ of certiorari and is not an appeal of right) a decision of a state's highest court. See 28 U.S.C. § 1257; Ernst v. Child and Youth Servs., 108 F.3d 486, 491(3d Cir. 1997). In civil, criminal, and other cases, the Supreme Court of the United States has reviewed decisions of the Supreme Court of South Carolina that were properly brought before it under 28 U.S.C. § 1257 or that statute's predecessors. See, e.g.,, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1991) (an example of a South Carolina Supreme Court case that was reviewed by the United States Supreme Court).
The Rooker-Feldman doctrine is applicable both to claims at issue in a state court order and to claims that are “inextricably intertwined” with such an order. See Exxon Mobil, 544 U.S. at 284. Plaintiff has not alleged any facts to indicate that this is a case where the federal complaint raises claims independent of, but in tension with, a state court judgment such that the Rooker-Feldman doctrine would not be an impediment to the exercise of federal jurisdiction. See Vicks v. Ocwen Loan Servicing, LLC, 676 Fed.Appx. 167 (4th Cir. 2017) (district court erred in applying Rooker-Feldman doctrine to bar appellants' claims where the claims did “not seek appellate review of [the state court] order or fairly allege injury caused by the state court in entering that order”); Thana v. Bd. of Licenser Comm'rs for Charles Cty., Md., 827 F.3d 314, 320 (4th Cir. 2016) (Rooker-Feldman doctrine is not an impediment to the exercise of federal jurisdiction when the federal complaint raises claims independent of, but in tension with, a state court judgment simply because the same or related question was aired earlier by the parties in state court).
Alternatively, to the extent that there is a pending state court action, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 (1971), and its progeny preclude this Court from interfering with the ongoing proceedings as Plaintiff can raise these issues in the state court proceedings. The Younger doctrine applies to civil proceedings that “implicate a State's interest in enforcing the orders and judgment of its courts.” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (internal quotation marks omitted). Thus, to the extent that Plaintiff is seeking injunctive or declaratory relief related to the family court matters underlying the action in state court, his claims are barred under the Younger doctrine. However, the abstention principles established in Younger might not require dismissal of Plaintiff's claims for damages. See, e.g., Lindsay v. Rushmore Loan Mgmt., Servs., LLC, No. PWG-15-1031, 2017 WL 167832, at *1, 4 (D. Md. Jan. 17, 2017) (“[C]auses of action for damages, such as Plaintiffs', may be stayed but not dismissed on Younger abstention grounds.”) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996)).
Plaintiff requests that a grand jury be empaneled to investigate Defendants for alleged violations of 18 U.S.C. §§ 241, 242, 513, 514, 876(d), 1001, 1341, and 2073. ECF No. 1 at 22. To the extent that he may be attempting to assert federal court jurisdiction pursuant to these criminal statutes, Plaintiff has not alleged any facts to establish that these statutes create a private cause of action, and “[t]he Supreme Court historically has been loath to infer a private right of action from “a bare criminal statute,” because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group.” Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 80 (1975)); see Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (observing that enforcement of statutory violation under § 1983 requires showing that “intended to create a federal right”). Where, as here, criminal statutes bear “no indication that civil enforcement of any kind was available to anyone,” a civil complaint alleging violations of such statutes cannot be sustained as a matter of law. Cort v. Ash, 422 U.S. at 80. Additionally, a violation of state law does not provide the basis for a claim under § 1983. See Clark v. Link, 855 F.2d 156, 161-62 (4th Cir. 1988).
As noted above, Plaintiff alleges claims under South Carolina law. This court should not exercise supplemental jurisdiction over such claims. As Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide statelaw claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States[.]” 28 U.S.C. § 1332. However, as noted above, Plaintiff has not alleged complete diversity of the parties. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); 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”).
B. Frivolousness
Additionally, Plaintiff's claims are frivolous and should be dismissed for the reasons discussed below. Defendants Judge Alice A. Richter (Judge Richter) and Judge Thomas T. Hodges (Judge Hodges) are entitled to judicial immunity; Defendant Julie Armstrong (Armstrong), the Charleston County Clerk of Court, is entitled to quasi-judicial immunity; Defendant Michael Leach (Leach) is entitled to immunity; Defendant County of Charleston is not in charge of the Charleston County family court; and Defendants Emily G. Johnston (Johnston), Victoria K. Rhea (Rhea), Sara Von Schweinitz (Schweinitz), and Lisa A. France are not state actors under § 1983. Additionally, to the extent Plaintiff is attempting to bring criminal charges against Defendants, he may not do so.
To the extent that Plaintiff is attempting to assert claims based on a “sovereign citizen” type claim, such claims should also be dismissed as they are frivolous. See Smalls v. Sterling, No. 2:16-4005-RMG, 2017 WL 1957471, at *1 (D.S.C. May 11, 2017); Gaskins v. South Carolina, No. 2:15-CV-2589-DCN, 2015 WL 6464440, at *4 (D.S.C. Oct. 26, 2015) (collecting cases); see also Mitchell v. Vesely, No. 5:17-CV-325-OC-30PRL, 2017 WL 11049094, *1 (M.D. Fla. Aug. 23, 2017) (“While Plaintiff does not state that he is a ‘sovereign citizen,' his arguments are similar to the ‘sovereign citizen' arguments that courts have routinely rejected as frivolous.”).
1. Judicial Immunity
Plaintiff claims that Judge Richter signed a temporary order on December 17, 2021 “to steal [Plaintiff's] earnings and require[e] payments that total 98% of [Plaintiff's] earnings without due process and trial by jury.” ECF No. 1 at 7. He claims that Judge Hodges “signed an order on December 2, 2022, to deny [Plaintiff's] motion to dismiss the Family Court action to stop deprivation of rights” and that Judge Thomas [Hodges] set trial by jury for April 2023, “thus continuing the emotional abuse, [requiring Plaintiff's] time to fight false allegations, stealing [Plaintiff's] earnings and requiring payments that total 75% of [Plaintiff's] earnings without due process and trial by jury.” Id. at 9.
Judges Richter and Hodges are entitled to summary dismissal because, based upon the facts alleged, they are entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.”); Webb v. Cty. of Allendale, No. 1:15-cv-02766-JMC, 2018 WL 661462, at *7 (D.S.C. Jan. 31, 2018) (“This judicial immunity also extends to the county for ... a state Family Court Judge's judicial actions.”); see also Guion v. Marsh, No. 6:18-cv-1609-DCC, 2019 WL 1771736, at *5 (D.S.C. Apr. 23, 2019) (finding claims against family court judge for judicial actions taken in relation to the termination of plaintiffs' parental rights barred by absolute judicial immunity and lacking any basis in fact or law), aff'd sub nom. Glenn v. Marsh, 806 Fed.Appx. 252 (4th Cir. 2020); Thomas v. Charleston Cty., No. 2:17-cv-1958-MBS-MGB, 2017 WL 11562553, at *5 (D.S.C. Sept. 5, 2017) (noting that plaintiff's claims against family court judges for their judicial actions “lack[ed] any basis in law, and [were] legally and factually frivolous”), report and recommendation adopted, 2020 WL 5569766 (D.S.C. Sept. 15, 2020). Immunity presents a threshold question which should be resolved before discovery is even allowed. See Siegert v. Gilley, 500 U.S. 226 (1991). Further, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356-57. Judicial immunity is not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that “immunity applies even when the judge is accused of acting maliciously and corruptly”). Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11.
2. Defendant Armstrong
Plaintiff alleges that Armstrong “allowed persons of the B.A.R., Department of Social Services, and the commercial/quasi-judicial Family court to deprive [him] of [his] God-given rights protected by the United State Constitution.” ECF No. 1 at 7. Defendant Armstrong is entitled to summary dismissal based on quasi-judicial immunity. See Briscoe v. LaHue, 460 U.S. 325, 33435 (1983) (noting that quasi-judicial immunity accorded to individuals who play integral part in judicial process); Johnson v. Turner, 125 F.3d 324, 332 (6th Cir. 1997) (finding clerk's office employees, acting as a judge's designee, are entitled to quasi-judicial immunity). [C]ourt clerks enjoy derivative absolute judicial immunity when they act in obedience to a judicial order or under the court's direction. McCray v. Maryland, 456 F.2d 1, 5 (4th Cir.1972); see also Pink v. Lester, 52 F.3d 73, 78 (4th Cir.1995) (holding that causes of action against clerks of court for negligent conduct impeding access to the courts cannot survive). Clerks of court are generally afforded quasi-judicial immunity from suit on claims involving “tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994); see also Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (court clerk is generally entitled to quasi-judicial immunity); Wymore v. Green, 245 Fed.Appx. 780, 783 (10th Cir. 2007) (affirming district court's grant of absolute quasi-judicial immunity to the state court clerk, who allegedly refused to file the prisoner's court documents).
3. Defendant Leach
Plaintiff claims that Leach, the Director of the Department of Social Services, worked with the County of Charleston and other Defendants “to garnish [Plaintiff's] earnings without due process and trial by jury.” ECF No. 1 at 8. However, Leach cannot be held liable for performing duties required by court orders. See Mayes v. Wheaton, No. 97 C 8072, 1999 WL 1000510 (N.D. Ill. Nov.1, 1999) (“Judicial immunity extends to all persons performing judicial and quasi-judicial functions, as well as those acting under the orders, or at the discretion, of a judicial officer.”) (citing Forrester v. White, 484 U.S. 219, 226-27 (1988)).
Leach, in his official capacity as an employee of the Department of Social Services, is also entitled to Eleventh Amendment immunity. The Eleventh Amendment divests this Court of jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts absent a specific waiver. See U.S. Const. amend. XI (stating that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”); see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984). “It is well established that [the South Carolina Department of Social Services], as an arm of the state, is immune from a suit for damages under the Eleventh Amendment.” Sallis v. Child Support Div., No. 7:19-cv-0320-TMC-JDA, 2019 WL 8953164, at *4 (D.S.C. Feb. 6, 2019), report and recommendation adopted, 2020 WL 995125 (D.S.C. Mar. 2, 2020); see also Allen v. Del Valle, No. 2:19-cv-2042-MBS-MGB, 2019 WL 6718055, at *2 (D.S.C. Oct. 25, 2019) (“The South Carolina Department of Social Services is a state entity and thus is immune.”), report and recommendation adopted, 2019 WL 6715930 (D.S.C. Dec. 9, 2019).
Additionally, to the extent that Leach is acting in a prosecutorial role, he is subject to summary dismissal because he has absolute prosecutorial immunity for his work. See Savage v. Maryland, 896 F.3d 260, 268 (4th Cir. 2018) (“In Imbler v. Pachtman, 424 U.S. 409, 430-32 [] (1976), the Supreme Court held that prosecutors are absolutely immune from damages liability when they act as advocates for the State.”); Washington v. Wilson, 697 Fed.Appx. 241, 243 (4th Cir. 2017) (per curiam); see also Bardes v. Magera, No. 2:08-CV-487-PMD-RSC, 2009 WL 3163547, at *11 (D.S.C. Sept. 30, 2009) (finding child-support prosecutor immune from suit), aff'd, 403 Fed.Appx. 862 (4th Cir. 2010).
4. County of Charleston
Plaintiff alleges that the County of Charleston “Municipal Corporation that made it possible to deprive me of my rights by bringing all the actors together to extort money from me and to give them a venue to do so.” ECF No. 1 at 7. Plaintiff appears to assert that the County of Charleston is in charge of the family law court. However, under South Carolina law, administration jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts absent a specific waiver. See U.S. Const. amend. XI (stating that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”); see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984). “It is well established that [the South Carolina Department of Social Services], as an arm of the state, is immune from a suit for damages under the Eleventh Amendment.” Sallis v. Child Support Div., No. 7:19-cv-0320-TMC-JDA, 2019 WL 8953164, at *4 (D.S.C. Feb. 6, 2019), report and recommendation adopted, 2020 WL 995125 (D.S.C. Mar. 2, 2020); see also Allen v. Del Valle, No. 2:19-cv-2042-MBS-MGB, 2019 WL 6718055, at *2 (D.S.C. Oct. 25, 2019) (“The South Carolina Department of Social Services is a state entity and thus is immune.”), report and recommendation adopted, 2019 WL 6715930 (D.S.C. Dec. 9, 2019). of the unified judicial system is the responsibility of the judicial branch pursuant to Article V of the South Carolina constitution and is not a matter of local concern. See Kramer v. County Council for Dorchester County, 282 S.E.2d 850, 852 (S.C. 1981); S.C. Const. Art. V, § 1. Even if Plaintiff had amended his Complaint to name the Charleston County Family Court as a defendant, this entity is as part of South Carolina unified court system and an integral part of the state and would thus be entitled to Eleventh Amendment immunity from Plaintiff's claims in this case. See Weathers v. Pou, No. C. A. 2:09270JFARSC, 2009 WL 1139984, at *4 (D.S.C. Apr. 27, 2009).
5. Defendants Johnston, Rhea, Schweinitz, and Lisa France
Defendants Johnston, Rhea, Schweinitz, and Lisa France are entitled to summary dismissal because they are not state actors under § 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). Plaintiff's claims against these Defendants should be summarily dismissed because Plaintiff has not alleged that these Defendants are persons acting under color of state law.
Defendants Johnston and Rhea are attorneys who allegedly represent Lisa France, and Schweinitz is allegedly a paralegal working for these attorneys. Plaintiff has alleged no facts to indicate that these Defendants acted under color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk Cnty. v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) (“A lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.”); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney); McCormick v. Barnes, No. 2:14cv971-MHT, 2014 WL 5198341, at *2 (M.D. Ala. Oct.14, 2014) (dismissing claim against private attorney's legal assistant because “neither an attorney nor his assistant act under color of state law during representation of an accused in criminal proceedings”); Goodyear v. Hornung, No. 07-cv-276-FTM-29SPC, 2007 WL 1362735, at *2 (M.D. Fla. May 7, 2007) (dismissing § 1983 claim because “[p]laintiff's privately retained defense counsel and his paralegal are not state actors”).
Defendant Lisa France should also be summarily dismissed because Plaintiff has not alleged any facts to indicate that she is a state actor. It is well settled that private litigants do not become state actors merely by engaging in litigation. Edwards v. Washington, No. 2:11-cv-3518-SB-BM, 2012 WL 1229506, at *6 (D.S.C. Jan. 5, 2012), report and recommendation adopted, 2012 WL 1237440 (D.S.C. Apr. 12, 2012); see also Allen v. Del Valle, No. 2:19-CV-2042-MBS-MGB, 2019 WL 6718055, at *4 (D.S.C. Oct. 25, 2019), report and recommendation adopted, No. CV 2:19-2042-MBS, 2019 WL 6715930 (D.S.C. Dec. 9, 2019) (“Although Allen makes a conclusory allegation that [his ex-wife] Del Valle acted in concert with other defendants, that is insufficient to demonstrate [Del Valle] has even potential liability as a state actor.”).
6. Criminal Prosecution of Defendants
As noted above, Plaintiff requests that a grand jury be empaneled to investigate Defendants for alleged violations of 18 U.S.C. §§ 241, 242, 513, 514, 876(d), 1001, 1341, and 2073. ECF No. 1 at 22. Such claims are subject to summary dismissal. A private citizen such as Plaintiff has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (A private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person); Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (applying Linda R.S. v. Richard D. and collecting cases); Collins v. Palczewski, 841 F.Supp. 333, 340 (D. Nev. 1993) (“Long ago the courts of these United States established that ‘criminal statutes cannot be enforced by civil actions.'”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that this action be dismissed without prejudice and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (holding that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
To the extent that this action is dismissed for lack of subject matter jurisdiction, it is recommended that dismissal be without prejudice. See Platts v. O'Brien, 691 F. App'x. 774 (4th Cir. 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[] must be one without prejudice because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”). Alternatively, to the extent Plaintiff has shown subject matter jurisdiction, it is recommended that this action be dismissed with prejudice as frivolous. See, e.g., Mills v. Marchant, No. 8:19-cv-1512-TMC-JDA, 2019 WL 2647600, at *2-3 (D.S.C. June 4, 2019), report and recommendation adopted, 2019 WL 2644216 (D.S.C. June 27, 2019) (noting that dismissal with prejudice is proper under 28 U.S.C. § 1915 where claims against a judge are barred by the doctrine of judicial immunity and therefore frivolous).
Plaintiff's attention is directed to the important notice 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 Post Office Box 835 Charleston, South Carolina 29402
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. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).