Opinion
Civil Action No. 7:19-479-HMH-KFM
03-27-2019
Adrian Lamar Glenn, Plaintiff, v. John Walters, Ronnie Forrester, Defendants.
REPORT OF MAGISTRATE JUDGE
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 (doc. 1). 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 this case and submit findings and recommendations to the district court.
The plaintiff filed this case against the defendants on February 19, 2019 (doc. 1). By order filed on March 7, 2019, the plaintiff was informed that his complaint was subject to summary dismissal because it fails to state a claim upon which relief may be granted (doc. 10). In the same order, the plaintiff was informed that he could attempt to cure the defects in his complaint by filing an amended complaint within fourteen days (doc. 10 at 5-6). 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.). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
BACKGROUND
The plaintiff's allegations involve a ticket he received as a result of an auto accident that occurred on August 8, 2017 (docs. 1; 1-1). The plaintiff alleges that on August 8, 2017, he was turning left on the light change when another vehicle ran the red light and hit the plaintiff's vehicle head-on (and other vehicles) (doc. 1-1 at 1). The plaintiff was cited on the initial accident report as the at-fault driver by defendant Officer John Walters, and received a ticket for failing to yield the right of way on left turn (id.; docs. 1-2; 1-3; 1-4).
The plaintiff alleges that Officer Walters' actions in issuing him a ticket violated his constitutional rights because there was "undeniable visual evidence" that the plaintiff was not the at-fault driver (docs. 1 at 3; 1-1 at 1). The plaintiff contends that due to this evidence, the defendants violated his constitutional rights by instigating and continuing a malicious prosecution against him (doc. 1 at 3).
The plaintiff further contends that the "unlawful ticket" caused the other driver's insurance company to deny liability, which caused him to suffer damages (doc 1-1). As for the defendant Ronnie Forrester, Officer Walters' supervisor, the plaintiff contends that Officer Forrester personally continued the malicious prosecution by refusing to correct the actions of Officer Walters, and that Officer Forrester tampered with evidence by changing the traffic collision report to reflect 50/50 liability for the collision (docs. 1-1; 1-3). The plaintiff alleges that due to the malicious prosecution he has suffered anxiety, missed job opportunities, spent additional monies to provide transportation for him and his family, and that the injustice by the defendants has caused him to suffer because his family could not afford to seek proper medical treatment (id.). For his relief the plaintiff seeks money damages in the amount of $675 million dollars (id. at 2).
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). 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 and seeking damages from the defendants. This action is duplicative of a prior action filed by the plaintiff against the defendants, which was dismissed as premature for failing to provide evidence of a favorable termination. ee Glenn v. Walters, et al., C/A No. 7:18-275-HMH, docs. 14; 17 (D.S.C. 2018). For the reasons that follow, the instant matter is subject to summary dismissal.
To the extent the plaintiff's complaint could be construed as seeking damages on his family's behalf, he may not do so. Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005) ("[N]on-attorney parents generally may not litigate the claims of their minor children in federal court." (citations omitted)).
Malicious Prosecution
Liberally construed, the plaintiff alleges a malicious prosecution claim against the defendants (doc. 1). However, as the plaintiff has failed to demonstrate a favorable termination of the criminal proceeding—the traffic ticket he received—the case is subject to summary dismissal. As noted by the Fourth Circuit, it is unclear "whether the Constitution recognizes a separate constitutional right to be free from malicious prosecution." Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009) (citations omitted). Nevertheless, "if there is such a right, the plaintiff must demonstrate both an unreasonable seizure and a favorable termination of the criminal proceeding flowing from the seizure." Id. (citations omitted). Moreover, even considering a malicious prosecution claim as a Fourth Amendment claim for unreasonable seizure, which incorporates certain elements of the common law tort, the plaintiff's complaint is still subject to dismissal because he has failed to meet his burden of showing that the termination of the proceedings were in his favor. Evan v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 233 F.3d 257, 261 (4th Cir. 2000); see also Zimbelman v. Savage, 745 F. Supp. 2d 664, 683-84 (D.S.C. 2010) (noting the elements of the common law tort of malicious prosecution as (1) instituting or continuing original judicial proceedings (civil or criminal); (2) by or at the instance of the defendant; (3) termination of proceedings in the plaintiff's favor; (4) malice in instituting such proceedings; (5) want of probable cause; and (6) resulting injury or damage).
As noted, the plaintiff has failed to allege a favorable termination with respect to his ticket for failure to yield the right of way on left turn—the basis of his malicious prosecution claim. Although the plaintiff provided the court with evidence that the ticket was nolle prossed, he has not met his burden of showing that the dismissal was based upon his innocence. Nicholas v. Walmart Stores, Inc., 33 F. App'x 61, 64 (4th Cir. 2002) (citing McKenney v. Jack Eckerd Co., 402 S.E.2d 887, 888 (S.C. 1991)); Jackson v. Gable, C/A No. 0:05-2591-HFF-BM, 2006 WL 1487047, at *6 (D.S.C. May 25, 2006). As such, absent more, the plaintiff has failed to meet his affirmative duty of proving a favorable termination. Accordingly, the plaintiff's claims are subject to summary dismissal.
Officer Forrester
To the extent the plaintiff seeks to hold Officer Forrester liable in his supervisory capacity in the Spartanburg City Police Department, his claims are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. 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 Cty. 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 made any personal allegations as to Officer Forrester in his supervisory role, beyond alleging that Officer Forrester tampered with the collision report after the plaintiff complained (doc. 1-1). As such, to the extent the plaintiff seeks damages against Officer Forrester in his supervisory capacity, his claims are not cognizable under § 1983. See Ford v. Stirling, C/A. No. 2:17-2390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C/A No. 0:10-434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010).
RECOMMENDATION
By order issued March 7, 2019, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an 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. The plaintiff failed to file an 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)). The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge March 27, 2019
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 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, 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).