Opinion
C. A. 7:23-3231-SAL-MHC
10-25-2023
James Anderson McClellan, Plaintiff, v. Amy W. Cox, Kevin J. Tyner, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This a civil action filed by Plaintiff James Anderson McClellan, a state prisoner. 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 a Proper Form Order dated September 14, 2023, Plaintiff was directed to provide certain documents to bring his case into proper form. He was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 5. On October 2, 2023, Plaintiff submitted a letter in which he states that he “do[es] not want to file the complaint, the United States District Court sent to [him].” ECF No. 8. Plaintiff has not filed the necessary proper form documents, as discussed further below. He did not file an amended complaint.
I. BACKGROUND
Plaintiff is an inmate at the Kirkland Correctional Institution of the South Carolina Department of Corrections (SCDC). Records from SCDC indicate that Plaintiff is serving two life sentences for kidnapping and burglary first. He also has sentences for smuggling contraband and threating the life of a public official. See SCDC Incarcerated Inmate Search, http://public.doc.state.doc.state.sc.us/scdc-public/ [Search Inmate “James McClellan”] (last visited Oct. 23, 2023).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL. 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
Plaintiff states that he is bringing claims under 42 U.S.C. § 1983 against state officials.ECF No. 1 at 3. He alleges claims against Defendants Amy W. Cox (Cox), the Clerk of Court for Spartanburg County, and Kevin J. Tyner (Tyner), a State Law Enforcement Division agent. See id. at 2-3.
Plaintiff has also checked a box on the Complaint form stating he is bringing claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against federal officials. ECF No. 1 at 3. However, he has not brought any claims against federal officials.
In the “Statement of Claim” portion of the Complaint, Plaintiff appears to allege that arrest warrants were issued to him on May 17, 2023, as to the alleged offense of threatening the life, person, or family of a public official, teacher, or principal. He appears to claim that the county where the charges were brought does not have jurisdiction over his case because the arrest warrants were not within “their county.” ECF No. 1 at 4. As relief, Plaintiff requests that this Court “commence a trial by jury [because] the Attorney General has failed to prosecute.” Id. at 5.
Records from Spartanburg County indicate that Plaintiff has a pending criminal case (case number 2023A4210100420) with an arrest date of May 9, 2023, on the charge of threatening the life, person, or family of a public official, teacher, or principal. Plaintiff is represented by counsel and requests for discovery have been made. See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/PISearch.aspx [search case number listed above] (last visited Oct. 23, 2023).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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
It is unclear if Plaintiff's letter (ECF No. 8) is a notice of dismissal or a statement by Plaintiff that he does not intend to complete a complaint form to amend his complaint. This action has not been served, and Defendants have not filed an answer or motion for summary judgment. Thus, to the extent that Plaintiff is attempting to voluntarily dismiss this action, it is recommended that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a).
This rule provides:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.Fed. R. Civ. P. 41(a).
However, if Plaintiff's letter is not intended to be a notice of dismissal a notice, it is recommended that this action be summarily dismissed for the reasons discussed below.
A. Plaintiff May Not Remove His Criminal Case From State Court
To the extent Plaintiff is attempting to remove his criminal case from state court, his attempt fails because he has not stated a basis for removal. In the context of criminal prosecutions, this court lacks subject matter jurisdiction, except in certain narrow circumstances pursuant to 28 U.S.C. §§ 1442 (Federal officers or agencies sued or prosecuted), 1442a (Members of armed forces sued or prosecuted), or 1443 (Civil rights cases). See, e.g., South Carolina v. Tucker, No. 3:17-1811-JFA-PJG, 2017 WL 3773137, at *1 (D.S.C. Aug. 11, 2017), report and recommendation adopted, 2017 WL 3730566 (D.S.C. Aug. 30, 2017); Virginia v. El, No. 3:16cv128, 2016 WL 4507814, at *3 (E.D. Va. Aug. 26, 2016); South Carolina v. Guidetti, No. 6:11-3365-HMH-JDA, 2011 WL 6979991, at *2 (D.S.C. Dec. 20, 2011), report and recommendation adopted, 2012 WL 78793 (D.S.C. Jan. 10, 2012); Iowa v. Johnson, 976 F.Supp. 812, 816 (N.D. Iowa 1997) (“If this state criminal prosecution is removable to federal district court, it must be on the basis of one of three federal statutes, 28 U.S.C. § 1442, 28 U.S.C. § 1442a, or 28 U.S.C. § 1443.”). Any attempt at removal fails to qualify under any of these provisions, as discussed further below.
It is unclear if Plaintiff is attempting to remove his criminal case from state court or if he is trying to bring § 1983 claims against Defendants. As reflected in the caption, the Court is construing this matter as an attempt to assert § 1983 claims. Under either theory, however, this case is subject to summary dismissal for the reasons discussed herein.
When a defendant in a state criminal case files a notice of removal in a United States District Court, that court “shall examine the notice promptly.” 28 U.S.C. § 1455(b)(4). “If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.” Id.
Plaintiff also fails to satisfy the procedural requirements of 28 U.S.C. § 1455, as he did not submit and sign a notice of removal, did not provide a short and plain statement of the grounds for removal, and did not file all required state court documents.
To qualify for removal pursuant to § 1442, a removing party must establish that he is an officer of the United States or a person acting under an officer of the United States. 28 U.S.C. § 1442; see Bald Head Ass n v. Curnin, No. 7:09-CV173-F, 2010 WL 1904268, at *3-5 (E.D. N.C. May 10, 2010), dismissed in part and aff'd in part, No. 10-1655, 2011 WL 1936083 (4th Cir. May 20, 2011); North Carolina v. Carr, 386 F.2d 129, 131 (4th Cir. 1967) (observing that “purpose of [28 U.S.C. § 1442] is to take from the State courts the indefeasible power to hold an officer or agent of the United States criminally or civilly liable for an act allegedly performed in the execution of any of the powers or responsibilities of the Federal sovereign”). Plaintiff has not alleged that he is a federal officer or that he was in any way assisting a federal official in the performance of his duties such that he has not alleged any facts supporting removal under § 1442.
Removal under § 1442a requires a removing party to show, among other things, that he is a member of the armed forces of the United States. 28 U.S.C. § 1442a. Plaintiff has not alleged that he is in the military. See Florida v. Simanonok, 850 F.2d 1429, 1430 n.1 (11th Cir. 1988) (“Clearly, the party seeking removal [under 28 U.S.C. § 1442a] must also be a member of the armed forces.” (emphasis added)). Thus, Plaintiff has not alleged any facts supporting removal under § 1442a.
Nor is this action removable under § 1443. The Supreme Court has stated that removal under 28 U.S.C. § 1443(2) “is available only to state officers;” City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824 n.22 (1966); and Plaintiff has not alleged that he is a state officer. Additionally, Plaintiff has not alleged any facts to support removal pursuant to § 1443(1), under which a removing party must first show that the “‘right allegedly denied ... arises under a federal law providing for specific civil rights stated in terms of racial equality;'” Lee-Bautista v. Bautista, 633 Fed.Appx. 148, 149 (4th Cir. 2016) (quoting Johnson v. Mississippi, 421 U.S. 213, 219 (1975)); and “that the removal petitioner is ‘denied or cannot enforce' the specified rights” in state court, Johnson v. Mississippi, 421 U.S. at 219 (citing Georgia v. Rachel, 384 U.S. 780, 803 (1966). Here, Plaintiff has not alleged that he has been denied his civil rights in terms of racial equality, and Section 1443(1) does not serve to remedy “the violation of ... constitutional rights phrased in terms of general rights applicable to all citizens.” Pennsylvania v. Brown-Bey, 637 Fed.Appx. 686, 688 (3d Cir. 2016); see Dugas v. Hanover Cnty. Circuit Court, No. 3:08CV72, 2008 WL 4153765, at *3 (E.D. Va. Sept. 5, 2008).
Nor may Plaintiff assert a civil counterclaim or defense such as a constitutional claim brought pursuant to 42 U.S.C. § 1983 as part of a removed criminal case. See Connecticut v. Parks, No. CIV.A 3:09-R-1(JCH), 2009 WL 3248654, at *2 (D. Conn. Oct. 5, 2009); South Carolina v. Guidetti, 2011 WL 6979991 (D.S.C. Dec. 20, 2011), report and recommendation adopted, 2012 WL 78793 (D.S.C. Jan. 10, 2012) (remanding state criminal case and noting that the criminal defendant could not assert counterclaims under 42 U.S.C. § 1983 or any other statute as part of his traffic court case); see also North Carolina v. El-Bey, No. 5:10-CV-246-FL, 2010 WL 3860392 (E.D. N.C. Sept. 28, 2010) (noting that the criminal defendant presumably sought removal of her criminal case because she intended to raise a federal defense that was not a proper basis for federal jurisdiction).
Additionally, to the extent Plaintiff may instead be attempting to remove his criminal case pursuant to 28 U.S.C. § 1441 based on federal question or diversity jurisdiction pursuant to 28 U.S.C. §§ 1331 or 1332, he cannot do so, as § 1441 only applies to the removal of civil cases. 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”) (emphasis added). Additionally, the federal question statute applies to civil cases. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”) (emphasis added).
Plaintiff does not appear to be asserting diversity jurisdiction and even if he does, the diversity statute does not apply to criminal actions. See 28 U.S.C. § 1332 (“The district court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and cost, and is between-(1) citizens of different States; [or] (2) citizens of a State and citizens or subjects of a foreign state....”) (emphasis added). Again, the case Plaintiff may be attempting to remove is a criminal, not a civil, action. Moreover, diversity of citizenship is lacking because Plaintiff (the defendant in the criminal action) is a citizen of the state in which the action was brought (South Carolina). See 28 U.S.C. § 1441(b)(2) (“A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”).
B. § 1983 Claims
To the extent Plaintiff is not attempting to remove his criminal case, but instead is attempting to bring claims under § 1983, this case should be summarily dismissed for lack of jurisdiction. Even if Plaintiff can establish jurisdiction, he fails to state a claim.
1. Lack of Jurisdiction (§ 1983 Claims)
To the extent Plaintiff is attempting to assert a claim under § 1983, this case should be summarily dismissed because Plaintiff fails to state a claim which this Court may consider under its federal question jurisdiction, see 28 U.S.C. § 1331, or its diversity jurisdiction, see 28 U.S.C. § 1332. Plaintiff appears to be attempting to assert federal question jurisdiction 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, Plaintiff fails to allege that any of his constitutional or statutory rights were violated. In response to the question on the Complaint form asking what federal constitutional or statutory rights are being violated, Plaintiff merely listed a case name. ECF No. 1 at 3. Additionally, there is no diversity jurisdiction as all parties appear to be South Carolina citizens.
2. Failure to State a Claim
Even if Plaintiff can establish jurisdiction, his case should be summarily dismissed because he fails to state a claim against any of the Defendants. Although Plaintiff lists the names of the Defendants (Cox and Tyner) in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that these Defendants violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”).
3. Defendant Cox/Quasi-Judicial Immunity
Additionally, to the extent Plaintiff is attempting to bring claims against Defendant Cox based on her role as the clerk of court, she is entitled to quasi-judicial immunity. See Briscoe v. LaHue, 460 U.S. 325, 334-35 (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).
4. No Intervention in Pending Criminal Case/Younger v. Harris
Additionally, Plaintiff's request that this Court intervene in his pending criminal case is subject to summary dismissal. Federal courts, absent extraordinary circumstances, are not authorized to interfere with a State's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989). Specifically, 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.
C. Failure to Bring Case into Proper Form
Additionally, it should be noted that Plaintiff has failed to bring this case into proper form. In the Court's Proper Form Order, Plaintiff was given the opportunity to bring his case into proper form by providing a fully completed and signed Financial Certificate and submitting a summons form listing every Defendant named in this matter. Plaintiff was warned that failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 5.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide the required items to bring his case into proper form and has failed to contact the court in any way. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting 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”).
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. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).