Opinion
C. A. 9:22-04144-BHH-MHC
05-18-2023
Kyrkland Mansell, Plaintiff, v. Greenville County Police Department, Hobart Lewis, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This a civil action filed by pro se Plaintiff Kyrkland Mansell. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order (Proper Form Order) dated January 10, 2023, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring the case into proper form for evaluation and possible service of process. Plaintiff was warned that failure to provide the necessary information within the timetable set forth in the Proper Form Order would subject the case to dismissal. In the Order, Plaintiff was notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 4. Plaintiff has not filed the documents necessary to bring his case into proper form and has not filed an amended complaint.
I. BACKGROUND
Plaintiff was a pretrial detainee at the Greenville County Detention Center (GCDC) at the time he brought this action. He brings constitutional claims under 42 U.S.C. § 1983 (§ 1983) against Defendants the Greenville County Police Department (GCPD) and Greenville County Sheriff Hobart Lewis (Lewis). This case appears to be duplicative of an earlier case filed by Plaintiff (case number 9:22-03519-BHH-MHC).
On October 12, 2022, Plaintiff filed an action (9:22-03519-BHH-MHC) against Defendant Lewis in which he appeared to allege substantially similar claims to those raised in this lawsuit. On February 8, 2023, that action was summarily dismissed without prejudice. See Mansell v. Lewis, No. 9:22-CV-3519-BHH, 2023 WL 1822149 (D.S.C. Feb. 8, 2023).
In this case, Plaintiff asserts that his due process rights were violated because “[t]hey did not take [him] to court for any of [his] disorderly conduct and was aware of it.” Complaint, ECF No. 1 at 4 (errors in original). Plaintiff alleges that his claims arose from February 5, through March 5, 2022, when he was in jail for thirty days. He requests monetary damages. Id. at 6.
Records from Greenville County indicate that Plaintiff was arrested on February 6, 2022, on a charge of disorderly conduct in criminal case number 2022A2330200907. A bond hearing was held and a surety bond in the amount of $ 258 was set on February 6, 2022. Plaintiff pled guilty to the charge on February 15, 2022, and was given a sentence of time served. See Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Georgetown/Pub licIndex/PISearch.aspx [search case number listed above] (last visited May 16, 2023). Records from Greenville County indicate that Plaintiff was arrested and detained at various times on other charges after that time (see case numbers 2022A2330201037, 20222330203935, 2022A2330203936, 2022A2330203937, and 8102P0633869).
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).
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
A. Claim Barred by Heck v. Humphrey
Plaintiff requests monetary damages because he allegedly was not taken to court as to his February 2022 charge for disorderly conduct. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court established the following test to determine whether a prisoner's claim for violation of due process in the context of a criminal proceeding is cognizable under 42 U.S.C. § 1983:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Heck, 512 U.S. at 486-487 (internal footnotes omitted). As noted above, public records indicate that Plaintiff pled guilty to the charge and was sentenced to time served. Plaintiff's Complaint includes no indication that his conviction or sentence has been overturned through a direct appeal, state post-conviction relief application, or habeas corpus proceeding or otherwise invalidated. It is recommended that Plaintiff's claim be dismissed because a judgment in Plaintiff's favor would necessarily imply the invalidity of his conviction on the February 2022 disorderly conduct charge and/or sentence.
However, where a plaintiff has already served his sentence, the Heck bar may not apply. See Wilson v. Johnson, 535 F.3d 262, 267-268 (4th Cir. 2008) (holding that former prisoners may in certain circumstances be exempt from Heck's favorable termination requirement); but see Bishop v. County of Macon, 484 Fed.Appx. 753 (4th Cir. 2012) (unpublished) (clarifying that the Wilson exemption to Heck does not apply to every § 1983 suit brought by a former prisoner who failed to obtain habeas relief while in custody). Here, Plaintiff has not argued that he was unable to seek habeas relief.
B. Failure to State a Claim Against the Named Defendant
Even if Plaintiff's claim is not barred by Heck, this case is subject to summary dismissal because Plaintiff fails to state a claim. Although Plaintiff lists Defendants' names in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that 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”).
Additionally, to the extent that Plaintiff may be attempting to bring a claim against Defendant Lewis based on a theory of supervisory liability, such a claim is subject to summary dismissal. To state a § 1983 claim for supervisory liability, a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Here, Plaintiff has not alleged any facts to establish supervisory liability as to Defendant Lewis.
C. Defendant GCPD is not a State Actor
Defendant GCPD is also entitled to summary dismissal as a party Defendant (even if this case were otherwise able to proceed) because this entity is not a “person” subject to suit under § 1983. A police department is a group of officers in a building and, as such, is not subject to suit under § 1983. Buildings and correctional institutions, as well as sheriff's departments and police departments, usually are not considered legal entities subject to suit. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a person pursuant to § 1983); Nelson v. Lexington Cnty. Det. Ctr., C/A No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that a building, a 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 (S.D. Fla. 1990) (dismissing city police department as improper defendant in § 1983 action because not “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 vehicle through which city government fulfills policing functions). The view that a municipal police department is not a legal entity subject to liability under § 1983 is in accord with the majority of federal courts that have addressed this issue. See, e.g., Dean v. Barbe r, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504, 510 (D. Conn. 2008) (“[A] municipal police department is not subject to suit under section 1983 because it is not an independent legal entity.”); Terrell v. City of Harrisburg Police Dep't, 549 F.Supp.2d 671, 686 (M.D. Pa. 2008) (a police department operated by a municipality is not a “person” amenable to suit under § 1983); Gore v. Conway Police Dep't, No. 9:08-1806-RBH, 2008 WL 2566985 (D.S.C. June 26, 2008); Lyons v. Edgefield County Police, No. 8:05-2503-MBS, 2006 WL 3827501, at *3 (D.S.C. Dec. 28, 2006) (police department not a separate suable entity amenable to suit).
In order to state a cause of action under § 1983, a plaintiff must allege that: (1) “some person has deprived him of a federal right,” and (2) “the person who has deprived him of that right acted under color of state or [federal] law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167 (1961).
D. Failure to Bring Case Into Proper Form
Additionally, Plaintiff has failed to bring this case into proper form as outlined in the Court's Order by paying the filing fee or completing, signing, and returning an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO-240); completing a summons form listing every Defendant; and completing and signing a Form USM-285 for each Defendant. See ECF No. 4. 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 id.
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. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41(b). 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, 791 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
Plaintiff's attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).