Opinion
C. A. 6:23-cv-04082-JD-KFM
01-23-2024
Cedric Wise, Plaintiff, v. John Doe 1 Davis, Bart Vincent, John Doe 2, John Doe 3, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
The plaintiff, a non-prisoner, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while he was incarcerated. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court. The plaintiff's complaint was entered on the docket on August 18, 2023 (doc. 1). By order filed September 12, 2023, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (doc. 8). The plaintiff complied with the court's order, bringing his case into proper form. Nevertheless, the plaintiff's complaint is subject to summary dismissal.
ALLEGATIONS
The plaintiff brings this action alleging that his rights were violated when his sentence was calculated incorrectly, which delayed his release (doc. 1). As an initial matter, the court takes judicial notice of the plaintiff's criminal convictions in the Sumter County General Sessions Court. See Sumter County Public Index, https://publicindex.sccourts.org/Sumter/PublicIndex/PISearch.aspx (enter the plaintiff's name and H536834, H536835, H538107, H538108) (last visited October 23, 2023).
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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 ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
The plaintiff alleges false imprisonment and denial of due process because the defendants, who work for the South Carolina Department of Corrections (“SCDC”), did not investigate his sentence computation error and made him over-serve his sentence (doc. 1 at 3, 7-9, 20). The plaintiff contends that in September 2019, he was transferred to a prerelease program at Lieber Correctional Institution, with a projected release date of August 2022 (id. at 9). The plaintiff indicated that date was wrong and he filed grievances about the incorrect date as instructed, but the date was not fixed and the defendants violated their oaths of office by refusing to correct his max out date (id. at 9-12, 14-21, 22-24). He further contends that disciplinary convictions should not have been used to change his max out date because they are not “crimes” (id. at 12). He filed a step 2 grievance about his improper max out date, but it was denied (id. at 12-13). Correspondence from Sherman Anderson had the plaintiff's correct max out date, August 17, 2021, but that date was later changed (id. at 13-14). During this time, the defendants unlawfully denied the plaintiff's grievances or ignored his grievances (id. at 16, 21-22).
The plaintiff alleges that his rights were violated because he had to serve beyond his max out date as well as that his continued illegal incarceration caused his family to suffer sleep deprivation, pain and suffering, and mental anguish (id. at 10). For relief, the plaintiff seeks compensatory and punitive damages and to have the defendants punished (id. at 5, 24).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. Nevertheless, the plaintiff's complaint is subject to summary dismissal. As an initial matter, the plaintiff's complaint appears to seek damages on behalf of his family; however, he cannot file or maintain a lawsuit on behalf of others so this action will only proceed with respect to the plaintiff's claims and alleged injuries. See Myers v. Loudon Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) (noting that although an individual has the right to represent himself/herself by statute - 28 U.S.C. § 1654 - that right does not “create a coordinate right to litigate for others”).
Additionally, of note, this action represents the plaintiff's third seeking relief regarding an alleged improperly calculated sentence. See Wise v. Kendall, et al., C/A No. 6:21-cv-00164-JD, 2021 WL 3410460 (D.S.C. Apr. 16, 2021), Report and Recommendation adopted by 2021 WL 3410057 (D.S.C. Aug. 4, 2021). The plaintiff's two prior cases were dismissed. See Wise, 2022 WL 798793; Wise, 2021 WL 3410057. As such, this action is subject to dismissal because it is duplicative of the plaintiff's prior actions that were dismissed.
The plaintiff's complaint is barred by Heck v. Humphrey
To the extent the plaintiff seeks money damages from the defendants for the incorrect calculation of his sentence, his claims are also barred by Heck. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that in order to recover damages for imprisonment in violation of the Constitution, the imprisonment must first be successfully challenged. Id. The Court stated:
We hold that, in 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 a 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.Id. at 486-87 (footnote omitted); see also Edwards v. Balisock, 520 U.S. 641 (1997) (the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies which necessarily imply the invalidity of the judgment). This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). The plaintiff's complaint includes no indication that his sentence as calculated has been overturned through a direct appeal, state post-conviction relief application, habeas corpus proceeding or otherwise (see doc. 1). Moreover, as noted, judicially-noticed, publicly-available online records for the Sumter County General Sessions Court indicate that the plaintiff pled guilty to one count of strong arm robbery (case number H536834), two counts of kidnapping (case numbers H536835 & H538107), and grand larceny (case number H538108). See Sumter County Public Index, (enter the plaintiff's name and H536834, H536835, H538107, H538108) (last visited October 23, 2023). The plaintiff's convictions do not indicate a favorable termination; thus, his damages claim is barred by Heck.
Additionally, although the plaintiff is no longer incarcerated, the holding in Wilson does not apply to the plaintiff's case. Wilson, 535 F.3d 262. In Wilson, the Fourth Circuit found that when a plaintiff is no longer in custody and cannot seek habeas relief, the Heck bar did not apply. Id. at 267-68. However - and fatal to the plaintiff's claims in this action - the Fourth Circuit's holding relied on the fact that the plaintiff in Wilson could not file a habeas action after exhausting his other remedies during the three month period of time he asserted was improperly added to his sentence. Id. at 268 n.8. Indeed, the Fourth Circuit, in a later decision analyzing Wilson, clarified that the exception in Wilson only applied if a plaintiff “could not have ‘practicably sought habeas relief while in custody.'” Griffin v. Baltimore Police Dep't, 804 F.3d 692, 696-97 (4th Cir. 2015). Here, as noted above, the plaintiff has filed two prior actions alleging that his sentence had been miscalculated - and in both of those cases, with the first order entered August 4, 2021, he was instructed to file a habeas claim pursuant to 28 U.S.C. § 2254. See Wise, 2022 WL 798793; Wise, 2021 WL 3410057. As such, unlike Wilson, here, the plaintiff had ample opportunity (prior to his release from custody) to file a habeas claim addressing his alleged improperly calculated sentenced. Thus, the Heck bar applies to the plaintiff's damages claim and the instant matter should be dismissed.
Supplemental Jurisdiction
To the extent the plaintiff seeks damages based upon the defendants violating a duty of care to him (which appears to be based upon the South Carolina Tort Claims Act), the court should abstain from exercising jurisdiction over such claims. Here, the plaintiff's state law claims can only be considered by this court through the exercise of “supplemental jurisdiction,” which allows federal courts to hear and decide state law claims along with federal claims. Wis. Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998); 28 U.S.C. § 1367. However, federal courts are permitted to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” Here, as noted above, the plaintiff's federal claims are subject to dismissal. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending the complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022) (published) (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”). It is further recommended that the United States District Judge assigned to this case warn the plaintiff regarding the entry of sanctions in the future should the plaintiff continue to file duplicative cases in this court. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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, Room 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).