Opinion
C/A No. 6:18-cv-3301-HMH-JDA
12-19-2018
Joseph Witchard, Plaintiff, v. Henry M. Herlong, Jr., Defendant.
REPORT AND RECOMMENDATION
Joseph Witchard ("Plaintiff"), proceeding pro se, commenced this civil action by filing a Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), against the Honorable Henry M. Herlong, Jr. ("Defendant"). Plaintiff is an inmate in the custody of the Federal Bureau of Prisons ("BOP") and is presently incarcerated at FCI-Williamsburg, in Salters, South Carolina. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons below, the Complaint is subject to summary dismissal.
BACKGROUND
Plaintiff contends that Defendant violated his constitutional rights by denying effective access to the courts under the First Amendment and by denying due process and equal protection of the law under the Fifth Amendment. [Doc. 1 at 4.] Specifically, Plaintiff alleges that Defendant deliberately failed to acknowledge and accept Plaintiff's "legal order granting judicial notice" in violation of his First and Fifth Amendment rights. [Id. at 5.] Plaintiff further contends that Defendant has "failed to release [P]laintiff from unlawful imprisonment intentionally and with deliberate indifference." [Id.]
According to Plaintiff, on August 31, 2017, he filed a motion for judicial notice in connection with his motion to vacate pursuant to 28 U.S.C. § 2255 with the United States Court of Appeals for the Eleventh Circuit. [Id. at 5-6.] On September 21, 2017, the Eleventh Circuit Court of Appeals purportedly granted Plaintiff's motion for judicial notice, but determined that it lacked jurisdiction to grant Plaintiff's requested mandamus relief for immediate release. [Id. at 7.] Thereafter, Plaintiff filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of South Carolina at case No. 8:18-cv-1236-HMH-JDA. [Id.] In that habeas action, Plaintiff raised two grounds for relief—stare decisis/res judicata and collateral estoppel—based on his motion for judicial notice filed with the Eleventh Circuit Court of Appeals. [Id.] The § 2241 habeas action was dismissed without prejudice and without requiring the Respondent to file an answer or return. [Id.] Plaintiff appealed the District Court's Order dismissing his habeas action to the Fourth Circuit Court of Appeals, but his appeal was denied. [Id.] Plaintiff contends that Defendant's actions in dismissing his habeas petition was made in error and he now seeks relief based on his assertion that he is being unlawfully imprisoned and Defendant's denial of his prior habeas actions and motions. [Id.]
For his injuries, Plaintiff contends that he has suffered "unlawful prolong[ed] imprisonment pursuant to charges filed against him and not indicted by a federal grand jury as required [by the Fifth Amendment] in which he is totally innocent." [Id. at 6.] Plaintiff contends that Defendant's unconstitutional acts have caused emotional pain and mental stress. [Id.] For his relief, Plaintiff seeks a jury trial, declaratory and injunctive relief requiring a speedy trial, and immediate release from custody. [Id.]
STANDARD OF REVIEW
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915A.
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F. 3d 630, 630n.1 (4th Cir. 2003). Nevertheless, 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. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Here, even under this less stringent standard, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915A(b).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; however, federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). The Complaint is filed pursuant to Bivens, which, like actions filed under 42 U.S.C. § 1983, "'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 legal action under Bivens allows "a party who has been deprived of a federal right under the color of [federal] law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under Bivens, 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 federal law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
The Complaint is subject to summary dismissal for two reasons. First, Defendant is entitled to judicial immunity from this Bivens action. See, e.g., Gaddy v. S.C. Dist. Court, No. 8:13-cv-2387-JFA-JDA, 2014 WL 1094442, at *4 (D.S.C. Mar. 18, 2014), aff'd sub nom. 582 F. App'x 268 (4th Cir. 2014); Hamilton v. Newman, No. 2:18-cv-0622-RMG, 2018 WL 4616050, at *2 (D.S.C. Sept. 26, 2018). Judges are immune from suit, including claims for relief under Bivens, for actions taken in their judicial capacity. See, e.g., Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986) (noting that for claims "considered under a Bivens type of constitutional tort theory or . . . the federal judges in this case are absolutely immune from liability"); 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."). Courts in this District have consistently recognized that the District Judges and Magistrate Judges of this Court assigned to a plaintiff's pending and prior cases are immune in a suit for damages as well as injunctive relief. See, e.g., Gaddy, 2014 WL 1094442, at *4 (explaining federal judges have absolute immunity from a Bivens action where a plaintiff seeks injunctive relief) (citing Bolin v. Story, 225 F.3d 1234, 1239-42 (11th Cir. 2000)); Weber v. G. Ross Anderson, Jr., No. 8:12-cv-1231-TMC-JDA, 2012 WL 2675368, at *4 (D.S.C. May 23, 2012), Report and Recommendation adopted by 2012 WL 2675449 (D.S.C. July 6, 2012), appeal dismissed 482 F. App'x 859 (4th Cir. Oct.16, 2012) (same); Anderson v. Brock, No. 0:10-cv-1690, 2010 WL 3238329, at *2 (D.S.C. July 29, 2010), Report and Recommendation adopted by 2010 WL 3221799 (D.S.C. Aug. 13, 2010) (explaining federal judges have absolute immunity from a claim for damages arising out of their judicial actions). Here, Defendant's actions alleged in Plaintiff's Complaint all arose from his official judicial actions. Accordingly, Defendant has absolute immunity from suit in this Bivens action.
Further, the core allegation of Plaintiff's Complaint is that he is being unlawfully imprisoned, and he seeks to vacate the federal criminal conviction and sentence that he is currently serving. Such a claim for relief is not properly sought in a Bivens action, such as the instant action. Instead, "it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc)). Thus, the relief sought by Plaintiff can only be granted through a habeas petition under § 2255 in the sentencing court. Rice, 617 F.3d at 807. However, Plaintiff has already filed a § 2255 habeas petition with the sentencing court, see United States v. Witchard, No. 6:14-cr-112-RBD-GJK, Doc. 108 (M.D. Fla. Jan. 26, 2015), alleging identical grounds to those raised in the instant Complaint, and he must therefore request leave from the appropriate court of appeals to file any subsequent § 2255 motion in the sentencing court, subject to the restrictions on successive or second § 2255 motions set forth in 28 U.S.C. § 2255(h). See 28 U.S.C. §§ 2244, 2255; see also United States v. Miller, No. 6:06-cv-548-HFF, 2007 WL 2684844, at *3 (D.S.C. Sept. 7, 2007).
Likewise, Plaintiff has also filed two previous § 2241 petitions in this Court, in which he raised identical grounds to those raised in the instant Petition. See Witchard v. Meeks, No. 8:15-cv-1958-GRA (D.S.C. May 19, 2015); Witchard v. Antonelli, No. 8:18-cv-1236-HMH (D.S.C. May 7, 2018). The first § 2241 petition was dismissed because Plaintiff's direct appeal remained pending at that time and the action was therefore premature until Plaintiff had completed his direct appeal and filed a § 2255 motion. The second petition was also dismissed as the savings clause did not apply.
Based on a review of the sentencing Court docket at case No. 6:14-cr-112-RBD-GJK in the United States District Court for the Middle District of Florida, it appears that Plaintiff filed two petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2255. The first petition, filed at Doc. No. 143 (see also case No. 6:15-cv-133-ORL-37-GJK) was dismissed on December 30, 2015, upon Plaintiff's motion to voluntarily dismiss or withdraw his pending § 2255 motion, see Doc. 143. Plaintiff then filed a second petition under § 2255 on July 13, 2016, at Doc. No. 151 (see also case No. 6:16-cv-1254-ORL-37-GJK), which was subsequently denied on the merits on July 3, 2017, see Doc. No. 153.
The habeas statute provides:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain
28 U.S.C. § 2255(h).(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
RECOMMENDATION
Accordingly, it is recommended that Plaintiff's Complaint be dismissed without issuance and service of process. It is further recommended that Plaintiff's motion [Doc. 2] for declaratory judgment and injunctive relief be denied. Plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 19, 2018
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).