Opinion
C/A 8:22-cv-04380-RMG-JDA
03-16-2023
Kelvin Toyo Henry, a/k/a Kevin Toyo Banks, Plaintiff, v. Warden of Greenville County Detention Center, State of South Carolina, Detective Shawn Cutting, Officer T. Kellett, Facebook, News Broadcast Fox 21, News Broadcast 7, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge.
Kelvin Toyo Henry (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is presently incarcerated as a pretrial detainee at the Greenville County Detention Center (“GCDC”). [Doc. 1-3 at 2.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review the pleadings filed in this matter and to submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to dismissal.
BACKGROUND
Plaintiff commenced this action by filing a handwritten document, which was construed as a civil rights complaint filed pursuant to 42 U.S.C. § 1983. [Docs. 1; 1-1.] Thereafter, Plaintiff filed a standard court complaint form [Doc. 1-3] as well as a handwritten document containing additional allegations [Doc. 1-4]. The Court construes all of these documents together as the Complaint filed in this matter.
Plaintiff makes the following allegations in his Complaint. Plaintiff contends that Defendants have violated his rights under the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Tenth, Eleventh, Thirteenth, and Fourteenth Amendments to the United States Constitution. [Doc. 1-3 at 4.] Plaintiff contends that he has been denied due process, freedom of speech, and the right to a speedy trial and that he has been subjected to “punitive confined conditions,” a civil conspiracy, double jeopardy, evidence suppression, and “lynch laws.” [Id.] Plaintiff contends that the South Carolina state courts have “ignore[d] the truth of evidence and medical, forensic, [and] scientific analysis.” [Id.] He contends he has been kidnaped, wrongly accused, sexually abused, shot, and deprived of his rights. [Id. at 5.]
As to his injuries, Plaintiff contends that he was sexually abused, suffered a gun shot wound to the left ankle, is permanently disabled, and needs crutches to walk. [Id. at 6.] For his relief, Plaintiff seeks damages in the amount of $45,000,000. [Id.]
The Court takes judicial notice that Plaintiff has been charged in the Greenville County Court of General Sessions with the following crimes: pointing and presenting firearms at a person at case number 2020A2320400314; assault and battery, 1st degree, at case number 2020A2320400316; criminal sexual conduct with a minor, 3rd degree, at case number 2020A2320400317; pointing and presenting firearms at a person at case number 2020A2320400318; assault and battery, 1st degree, at case number 2020A2320400319; attempted murder at case number 2021A2330211857; possession of a weapon during a violent crime at case number 2021A2330211858; and attempted murder at case number 2021A2330211859. See Greenville County Thirteenth Judicial Circuit Public Index, available at https://publicindex.sccourts.org/Greenville/PublicIndex/ PISearch.aspx (search by the case numbers listed above) (last visited Jan. 4, 2023). Those charges all 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. 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). 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, Plaintiff's Complaint is 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).
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, 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). “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. Balt. City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). “And, although the pleading requirements of Rule 8(a) are very liberal, more detail often is required than the bald statement by plaintiff that he has a valid claim of some type against defendant.” Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (citation and internal quotations omitted). This is particularly true in a § 1983 action where “liability is personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “In order for an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.... Consequently, [defendants] must have had personal knowledge of and involvement in the alleged deprivation of [plaintiff]'s rights in order to be liable.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (internal quotation marks omitted).
DISCUSSION
Plaintiff filed this action 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). Here, for the reasons below, this action is subject to summary dismissal.
This action is duplicative
As an initial matter, the undersigned notes that this action is duplicative of other actions Plaintiff has filed in this Court. Significantly, the present action appears to involve claims and allegations similar to an action filed in this Court at case number 22-cv-3278. Upon review, it appears to the Court that Plaintiff is attempting to re-assert the same claims against many of the same Defendants under the same facts as his prior case. Indeed, Plaintiff specifically cites his prior action in the Complaint filed in this case [Doc. 1-4 at 1-4] and has attached various documents and orders filed in that prior action [ id. at 14-17].
The Court takes judicial notice of Plaintiff's other actions filed in this Court at case numbers 22-cv-1955, 22-cv-3278, and 22-cv-4708.
The action at case number 22-cv-3278 remains pending at this time. On November 1, 2022, the undersigned entered a report and recommendation, recommending that the action be summarily dismissed. Plaintiff filed objections to that report and recommendation on November 14, 2022.
Indeed, Plaintiff makes numerous allegations in his Complaint against this Court regarding his prior action. For example, Plaintiff contends that “Jacquelyn D. Austin refuse[d] to take evidence . . . ignoring hard proof and facts” and that the “Magistrate Judge refuse[d] to take action, instead deprive[d Plaintiff] of liberty, justice, and due process.” [Doc. 1-4 at 2-3.] Plaintiff suggests that the undersigned “will find some way to not investigate [Plaintiff's claims] or tell [him they are] not real.” [Id. at 3.] Plaintiff also claims that the undersigned is engaged in a civil conspiracy and cover-up with the Honorable Richard M. Gergel. [Id. at 4.] Plaintiff contends that this Court is a “kang-a-roo court” that lacks the power to handle the matters he is bringing forth. [Id.] Plaintiff also makes statements such as “The Truth You Can't Dismiss, I will get you people fired.” [Id. at 2.] It is unclear for whom such statements are intended.
As such, because the present action is duplicative of Plaintiff's prior case, this action warrants dismissal. “[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.” Paul v. de Holczer, No. 3:15-cv-2178-CMC-PJG, 2015 WL 4545974, at *6 (D.S.C. July 28, 2015) (holding the “Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency”), aff'd, 631 Fed.Appx. 197 (4th Cir. Feb. 4, 2016). The Fourth Circuit Court of Appeals has instructed that, “[b]ecause district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, at *1 (4th Cir. Aug. 14, 2000) (unpublished table decision) (citing Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992) (“district courts may dismiss duplicative complaints under section 1915”)); Wilkins v. Harley, No. 6:11-cv-3463-MBS-KFM, 2012 WL 256566, at *2 (D.S.C. Jan. 12, 2012) (“this duplicate § 1983 Complaint is frivolous and subject to summary dismissal”), Report and Recommendation adopted by 2012 WL 260159 (D.S.C. Jan. 27, 2012). Therefore, in the interests of judicial economy and efficiency, because the present action is a meritless duplicate of a prior lawsuit filed by Plaintiff, the present case is frivolous and subject to summary dismissal. See Lester v. Perry Corr. Inst., No. 4:12-cv-971-TMC-TER, 2012 WL 1963592, at *3 (D.S.C. May 10, 2012), Report and Recommendation adopted by 2012 WL 1963566 (D.S.C. May 31, 2012), aff'd, 479 Fed.Appx. 509 (4th Cir. 2012); see also Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (“The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient.”).
Abstention under Younger
Additionally, the Court should abstain from hearing Plaintiff's claims related to his pending state court criminal charges. Plaintiff makes various confusing and cursory allegations regarding the underlying incidents and investigations related to the criminal charges pending against him. Indeed, the crux of this action appears to be a challenge to the charges pending against Plaintiff in the Greenville County Court of General Sessions as well as his current detention in the GCDC.
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, and he asks that his criminal charges 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 Human Rels., 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. 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 related to the pending criminal charges against him and the legality of his present detention at the GCDC.
Defendants Entitled to Dismissal
Next, each of the named Defendants are entitled to summary dismissal as explained below.
Facebook, News Broadcast Fox 21, News Broadcast 7
Facebook, News Broadcast Fox 21, and News Broadcast 7 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).
Plaintiff has not alleged facts showing that these three Defendants are state actors. Further, Plaintiff has not alleged facts showing that these Defendants were wilful participants in joint action with the police such that they are subject to liability under § 1983. Accordingly, Plaintiff's claims against these Defendants are not proper in this § 1983 action because they are not state actors, and they are therefore entitled to dismissal. See, e.g., Saub v. Potter, No. 3:17-cv-572, 2018 WL 2088747, at *3 (E.D. Va. May 4, 2018) (noting that Facebook is a private corporation and, as such, is not a state actor amenable to suit under § 1983); Allen v. Glines, No. 1:19-cv-793, 2019 WL 6467810, at *3 (M.D. N.C. Dec. 2, 2019) (noting newspapers and media outlets are not state actors amenable to suit under § 1983) (collecting cases), Report and Recommendation adopted by 2020 WL 353540 (M.D. N.C. Jan. 21, 2020), aff'd, 805 Fed.Appx. 247 (4th Cir. 2020).
Police Officers Cutting and Kellett
Plaintiff appears to name certain police officers as Defendants-Detective Shawn Cutting and Officer T. Kellett (the “police officer Defendants”). Both of these police officer Defendants appear to be named because of their involvement in the investigations related to Plaintiff's pending state court criminal charges. However, the Complaint is difficult to decipher and Plaintiff's claims against the police officer Defendants are unclear. Nevertheless, the undersigned is able to glean the following pertinent allegations as to these Defendants. Plaintiff alleges both Cutting and Kellett “are corrupt police officers and should be removed from duty and pay for their action [in] erasing evidence in police reports and police misconduct[,] police brutality, in the investigation.” [Doc. 1-4 at 11.] Plaintiff alleges that “Detective Shawn Cutting knowing[ly] and willfull[y] suppress[ed] evidence from courts and judges.” [Id.] Plaintiff contends that Defendant Kellett used his “Chime Card Account to buy a pizza at Dominion's Pizza.” [Id. at 3.] Plaintiff makes other similar cursory allegations against these police officer Defendants.
In addition to Cutting and Kellett, Plaintiff also makes allegations against other police officers. For example, Plaintiff contends that Jonathan J. Garret suppressed evidence and knowingly acted to deprive him of his rights. [Doc. 1-4 at 1.] However, Plaintiff did not name Garret as a Defendant. Even if he had, Garret would be subject to dismissal for the same reasons as the other Defendant police officers.
Even if these allegations are accepted as true and construed in a light most favorable to Plaintiff, the Complaint fails to state any claim for relief against the Defendant police officers. Plaintiff's contentions that the police officer Defendants engaged in misconduct, conspiracies, and/or any other unlawful and unconstitutional conduct, such claims are without merit because he has not alleged any facts to support cognizable claims. Plaintiff's cursory allegations simply do not satisfy the pleading requirements to state a plausible claim for relief.
As to any claims that the police officer Defendants violated the Fourth Amendment, Plaintiff cannot pursue any such claims. Significantly, in Plaintiff's prior action at case number 22-cv-3278, which was discussed above, Plaintiff made similar allegations against these same Defendants and provided the Court with copies of the police officers' incident reports and two separate arrest warrants related to the charges of attempted murder and pointing and presenting a firearm, which both remain pending against him. See Henry v. Warden of the Greenville Cnty. Det. Ctr., No. 6:22-cv-03278-RMG-JDA (D.S.C. Sept. 26, 2022), Doc. 12-1 at 10-16, 20-21. In light of these facially valid arrest warrants, Plaintiff cannot pursue a § 1983 claim for false arrest in violation of the Fourth Amendment. See Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (“[A] claim for false arrest may be considered only when no arrest warrant has been obtained.”); Howell v. Taylor, No. 3:13-cv-2111-JFA-PJG, 2013 WL 6240518, at *6 (D.S.C. Dec. 3, 2013).
Further, Plaintiff cannot state a claim for malicious prosecution as a matter of law. “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) (cleaned up). To the extent Plaintiff is asserting a claim for malicious prosecution against the police officer Defendants, any such claim fails because he has not alleged the underlying criminal proceedings terminated in his favor and because the prosecution is supported by probable cause as conclusively established by the numerous indictments for the many charges pending against him in the Greenville County Court of General Sessions. Id.
To the extent Plaintiff asserts other claims against these Defendants, he has failed to allege facts to state a plausible claim for relief. Accordingly, the police officer Defendants are entitled to dismissal because Plaintiff has failed to state a claim for relief that is plausible.
Warden of GCDC
Plaintiff also names the Warden of GCDC. To the extent Plaintiff sues the Warden of GCDC based on supervisory liability, he is subject to dismissal because the doctrine of respondeat superior is generally not applicable in § 1983 actions. Iqbal, 556 U.S. at 676 (“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.”); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). For a supervisory official to be held liable for constitutional injuries inflicted by his subordinates, certain criteria must be established. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Specifically, a plaintiff must show that the supervisory official was (1) actually or constructively aware of a risk of constitutional injury, (2) and deliberately indifferent to that risk, and (3) that an affirmative causal link exists between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Carter, 164 F.3d at 221. Here, the Complaint contains no plausible allegations against any Defendant to make such a showing.
Further, to the extent Plaintiff intends to sue GCDC as a whole, it is entitled to summary dismissal as it is not a “person.” It is well settled that only “persons” may act under color of state law, and, therefore, a defendant in a § 1983 action must qualify as a “person.” See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001). GCDC is a facility or building and, as such, is not subject to suit because it cannot be sued as a “person” in a § 1983 lawsuit. See e.g., Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D. N.C. 1989) (“Claims under § 1983 are directed at ‘persons' and the jail is not a person amenable to suit.”); Morrison v. Greenville Cnty. Det. Ctr., No. 4:17-cv-2657-JMC-TER, 2017 WL 7732598, at *3 (D.S.C. Oct. 10, 2017), Report and Recommendation adopted by 2018 WL 936383 (D.S.C. Feb. 16, 2018). Police departments, buildings, and correctional institutions usually are not considered legal entities subject to suit. See Harden, 27 Fed.Appx. at 178 (finding that the medical department of a prison is not a person pursuant to § 1983); Nelson v. Lexington Cnty. Det. Ctr., No. 8:10-cv-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that a building-the detention center-is not amenable to suit under § 1983 and that Food Service Supervisors was a group of people not subject to suit); see also Post v. City of Fort Lauderdale, 750 F.Supp. 1131, 1132 (S.D. Fla. 1990) (dismissing city police department as improper defendant in § 1983 action because it was not a “person” under the statute); Shelby v. City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga. 1984) (dismissing police department as party defendant because it was merely a vehicle through which city government fulfills policing functions).
State of South Carolina
The State of South Carolina is also entitled to summary dismissal from this action. First, South Carolina cannot be sued under § 1983 because it is not a “person.” Brooks v. S.C. Dep't of Corr., No. 6:18-cv-0632-MBS-KFM, 2018 WL 2470746, at *2 (D.S.C. Apr. 20, 2018), Report and Recommendation adopted by 2018 WL 2461897 (D.S.C. June 1, 2018). It is well settled that the State of South Carolina is not considered a person subject to suit under 42 U.S.C. § 1983. See, e.g., Cobb v. South Carolina, No. 2:13-cv-02370-RMG, 2014 WL 4220423, at *6 (D.S.C. Aug. 25, 2014); Ackbar v. South Carolina, No. 4:17-cv-1019-RMG-TER, 2017 WL 2348460, at *2 (D.S.C. May 17, 2017), Report and Recommendation adopted by 2017 WL 2364302 (D.S.C. May 30, 2017).
Further, the State of South Carolina has Eleventh Amendment immunity from a suit for damages brought in this Court. See Belcher v. S.C. Bd. of Corr., 460 F.Supp. 805, 808-09 (D.S.C. 1978). The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina or its integral parts. U.S. Const. amend. XI; see also Alden v. Maine, 527 U.S. 706 (1999); Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996); Bellamy v. Borders, 727 F.Supp. 247, 248-50 (D.S.C. 1989). Since the Eleventh Amendment bars the relief that Plaintiff requests against the State of South Carolina, the Complaint fails to state a claim on which relief may be granted against this Defendant and, as a result, it should be dismissed. Hagood v. South Carolina, No. 6:20-cv-00362-HMH-JDA, 2020 WL 981290, at *3 (D.S.C. Feb. 4, 2020), Report and Recommendation adopted by 2020 WL 980163 (D.S.C. Feb. 28, 2020).
Failure to State a Claim
Finally, in addition to each of the reasons for dismissal already noted, this action is subject to dismissal for failure to state a claim. It is unclear to the Court what causes of action Plaintiff intends to state in his Complaint. Plaintiff has cited many constitutional amendments as the basis for his claims. However, he fails to provide allegations to support a claim for relief that is plausible as to those constitutional provisions.
Fourth Amendment, False Arrest and Malicious Prosecution
First, to the extent Plaintiff is asserting claims for unlawful search and seizure, false arrest, false imprisonment, and/or malicious prosecution, his claims are without merit as a matter of law. 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, because Plaintiff has presented no facts concerning the specific circumstances of his arrest and detention, he has failed to plead the minimum facts necessary to state a cognizable claim for a Fourth Amendment violation. Additionally, 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 indictments for the charges pending against Plaintiff noted above. The indictments act as a bar to Plaintiff's claims for money damages as to those charges and his present incarceration in the Greenville County Detention Center. Therefore, any claims related to those charges and his incarceration are subject to summary dismissal.
Fifth and Fourteenth Amendments, Due Process
Likewise, Plaintiff's due process claims under the Fifth and Fourteenth Amendments 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. First, the Court should abstain from deciding such claims under Younger. Further, at this stage, the valid indictments against him act as a bar to any such claims.
To the extent Plaintiff is alleging a substantive due process claim with regard to the conditions of his confinement, he has failed to allege facts to state a plausible claim. “To prevail on a substantive due process claim, a pretrial detainee must show unconstitutional punishment by proving that the challenged conditions were either (1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective, in which case an intent to punish may be inferred.” Williamson v. Stirling, 912 F.3d 154, 178 (4th Cir. 2018) (internal citation and quotation omitted). However, “Plaintiff's allegations do not rise to state a claim of a constitutional magnitude.” Brown v. Polk, No.4:21-cv-1229-TMC-TER, 2021 WL 3080966, at *2 (D.S.C. June 28, 2021) (discussing the requirements for a pretrial detainee to state a claim under the Fourteenth Amendment), Report and Recommendation adopted by 2021 WL 3080157 (D.S.C. July 21, 2021). Plaintiff appears to allege that he slipped and fell in a shower at GCDC. However, he makes no allegations concerning the circumstances of that slip and fall, his injuries, or the individuals responsible. As such, his claim is without merit. The undersigned notes that this claim was previously addressed in case number 22-cv-3278.
Sixth Amendment, Speedy Trial
Next, Plaintiff appears to allege that Defendants have violated his right to a speedy trial under the Sixth Amendment. [Doc. 1-4 at 1.] “The Sixth Amendment provides that an ‘accused shall enjoy the right to a speedy and public trial,' and this right has been applied to the states through the Fourteenth Amendment.” Vaughn v. Greenwood Cnty. Sheriff's Dep't, No. 8:07-cv-2022-TLW-BHH, 2008 WL 5378265, at *2 (D.S.C. Dec. 24, 2008).
Although Plaintiff appears to allege that he has been denied the right to a speedy trial, he does not allege the violation of any federal statute. Even if he had, the Federal Speedy Trial Act, 18 U.S.C. § 3116, et seq., applies only to criminal prosecutions brought by the United States and not to those brought by state or local governments. See United States v. Burgess, 684 F.3d 445, 451 (4th Cir. 2012). Further, this “federal court should abstain from considering a speedy-trial claim at the pretrial stage because the claim could be raised at trial and on direct appeal.” Julius v. Dickers, No. 4:18-cv-105-HMH-TER, 2018 WL 1545698, at *3 n.3 (D.S.C. Mar. 5, 2018), Report and Recommendation adopted by 2018 WL 1536572 (D.S.C. Mar. 29, 2018). As previously discussed, this Court should abstain under Younger from hearing Plaintiff's claims because he has available state court remedies. See, e.g., Tyler v. South Carolina, No. 9:12-cv-260-RMG-BM, 2012 WL 988601, at *3 (D.S.C. Feb. 22, 2012), Report and Recommendation adopted by 2012 WL 988 596 (D.S.C. Mar. 22, 2012). As such, Plaintiff's speedy-trial claim under the Sixth Amendment should be dismissed.
Eighth Amendment, Deliberate Indifference
Further, liberally construed, the Amended Complaint might be asserting claims for deliberate indifference to his medical needs. Specifically, the Complaint contains various confusing and conclusory allegations concerning Plaintiff being shot and slipping and falling in the shower. However, Plaintiff's allegations fail to state a claim for relief that is plausible.
A pretrial detainee's deliberate indifference claim arises under the due process clause of the Fourteenth Amendment rather than the Eighth Amendment; however, the Eighth Amendment's prohibition of cruel and unusual punishments provides the framework for analyzing such a claim. See Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988).
As an initial matter, the undersigned notes that, in case number 22-cv-3278, the Court previously addressed Plaintiff's allegations concerning his injury from being shot by his wife. As in that case, to the extent Plaintiff intends to assert a claim in this case related to any deliberate indifference as to his treatment for any injury arising from being shot by his wife, he has failed to state a claim for relief because he provides no allegations regarding the personal involvement of any individual who is responsible for his medical treatment or how any such treatment or lack of treatment rises to the level of deliberate indifference. Likewise, to the extent Plaintiff intends to state a claim related to his slip and fall in the shower, he has failed to allege any facts against any individual to state a claim for deliberate indifference.
To establish a claim for deliberate indifference to his serious medical needs under 42 U.S.C. § 1983, Plaintiff must allege facts showing that (1) he was deprived of an objectively serious medical need by a state actor and (2) the state actor knew of and disregarded an excessive risk to his health or safety. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness, and as a consequence, many acts or omissions that would constitute medical malpractice will not rise to the level of deliberate indifference.” Jackson, 775 F.3d at 178. Absent exceptional circumstances, a plaintiff cannot establish a cognizable deliberate indifference claim when there exists a mere disagreement between the plaintiff and the state official over the proper medical care. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
Here, Plaintiff has not alleged that any Defendant knew of and disregarded a serious medical need and its associated risks. Simply put, Plaintiff does not provide any facts to support a deliberate indifference claim and he fails to identify any defendant responsible for his injury of his medical care. Therefore, because Plaintiff has “not nudged [his] claims across the line from conceivable to plausible,” the Complaint is subject to dismissal. Twombly, 550 U.S. at 570.
As the Fourth Circuit has noted:
To state a claim under Section 1983 for deliberate indifference to serious medical needs, a prisoner must show that he had a serious medical need, and that officials knowingly disregarded that need and the substantial risk it posed. A “serious medical need” is a condition “diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” An official acts with deliberate indifference if he had actual knowledge of the prisoner's serious medical needs and the related risks, but nevertheless disregarded them.Depaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citations omitted).
State Law Claims, Defamation
Next, to the extent Plaintiff is attempting to assert a claim sounding in state law for defamation or any other tort, any such claim fails because purely state law claims are not actionable under § 1983. See Paul v. Davis, 424 U.S. 693, 697-710 & nn.3-4 (1976) (finding that “any harm or injury to [Plaintiff's interest in his reputation], even where as here inflicted by an officer of the State, does not result in a deprivation of any ‘liberty' or ‘property' recognized by state or federal law”); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987) (noting negligence, in general, is not actionable under 42 U.S.C. § 1983). Here, Plaintiff appears to allege that certain Defendants have engaged in defamation, negligence, and other torts sounding in state law. [See, e.g., Doc. 1-4 at 3 (alleging Defendants are providing “misinformation to the public shown on Facebook, Fox 21, Steve Harvey Morning Show, social media”), 4 (alleging Defendants are engaging in “defamation of character as Fox 21 news reported not investigating the full story”).] However, § 1983 does not impose liability for violations of duties of care arising under a state's tort law. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200-03 (1989); Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable under the laws of most states, but not a constitutional deprivation.”); Pink v. Lester, 52 F.3d 73, 75-78 (4th Cir. 1995) (explaining a claim for negligence is not cognizable under § 1983). Accordingly, Plaintiff's allegations concerning purely state law claims of defamation or negligence fail to establish a claim for a violation of a federal right as required under § 1983, and any such claim is subject to dismissal from this action. See Wilson v. Ozmint, No. 3:10-cv-2887-RMG, 2011 WL 1336391, at *1-2 (D.S.C. Apr. 7, 2011).
As to any other claim brought under any other federal law or constitutional provision not addressed herein, the undersigned concludes that Plaintiff is not entitled to relief as a matter of law or because he has failed to allege facts to support a cognizable claim.
For example, Plaintiff contends his rights under the Thirteenth Amendment have been violated. Although it is unclear what conduct or events this claim is based upon, it is well settled that “[b]y its plain language, the Thirteenth Amendment does not apply to a convicted criminal.” Moore v. Solomon, No. 1:16-cv-238-FDW, 2016 WL 6272406, at *3 (W.D. N.C. Oct. 25, 2016), aff'd, 688 Fed.Appx. 196 (4th Cir. 2017). Courts have routinely dismissed Thirteenth Amendment claims by prisoners as frivolous. See, e.g., Cox v. United States, No. 3:12-cv-50-TMC-JRM, 2012 WL 1158864, at *2 (D.S.C. Mar. 13, 2012), Report and Recommendation adopted by 2012 WL 1158861 (D.S.C. Apr. 9, 2012). Similarly, “[a]s for Plaintiff's claim of violation of Plaintiff's alleged Tenth Amendment rights, the Court does not see how it could apply here to afford the Plaintiff any relief under § 1983.” James-Bey v. N.C. Dep't of Pub. Safety, No. 1:19-cv-00020-FDW, 2019 WL 5198490, at *4 (W.D. N.C. Oct. 15, 2019). Plaintiff has also cited the Second Amendment, but he provides no facts to support any such claim and the Court is unable to determine what cause of action might arise under that amendment.
Plaintiff's Motions
Plaintiff has filed a motion for an order to suppress evidence [Doc. 2] and a motion for speedy trial [Doc. 5]. Both of Plaintiff's motions relate to his pending state court criminal cases. As the undersigned recommends that the present federal court action be dismissed, the pending motions should be found as moot.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 and § 1915A without further leave to amend and without issuance and service of process. It is further recommended that Plaintiff's motion for order of suppression of evidence [Doc. 2] and motion for speedy trial [Doc. 5] be found as moot.
Because the allegations in the present Complaint are nearly identical to Plaintiff's prior action and because he was given an opportunity to amend his claims in that prior case, the undersigned recommends dismissal without an opportunity to amend in the present case.
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).