Sellers v. Parker et al

Filing 14

ORDER adopting 10 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks, dismissing action in its entirety. Signed by Honorable Mary G Lewis on 6/3/13.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Aven Lamar Shariff Sellers,

)
)
Plaintiff,
)
)
v.
)
)
Sheriff Sam Parker; Administrator Richie; )
Lt. Gillespie; Chesterfield SC Detention
)
Center; Federal Attorney Jay Wallace
)
Jordan; United States District Courts
)
Booking Marshal, Florence S.C.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 2:12-2263-MGL

ORDER AND OPINION

Plaintiff Aven Sellers (“Plaintiff”) is a federal detainee presently confined at the Florence
County Detention Center. On August 9, 2012, Plaintiff, proceeding pro se filed this civil action
against several state, county, and federal defendants alleging he suffered severe emotional distress
after having received false information. (ECF No. 1.) Plaintiff seeks a court order reprimanding and
fining Defendants, punitive damages, and any other relief the court deems justified. In accordance
with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United
States Magistrate Judge Bruce Howe Hendricks for pretrial handling. On August 17, 2012,
Magistrate Judge Hendricks issued a Report and Recommendation recommending this court dismiss
Plaintiff’s complaint without prejudice and without service of process. (ECF No. 10.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with this court.
See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C.

§ 636(b)(1). The court may also receive further evidence or recommit the matter to the Magistrate
Judge with instructions. Id. The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made.
Plaintiff objected to the Magistrate Judge’s recommendation to this court on September 6,
2012 (“Objections”). (ECF No. 12.) The court reviewed the Objections and will discuss them in
greater detail below in conjunction with its review of the Magistrate Judge’s analysis. After
conducting a de novo review of the Objections and considering the record, applicable law, and the
Report and Recommendation of the Magistrate Judge, the court agrees that this matter should be
dismissed without prejudice and without service of process.
ANALYSIS
The Magistrate Judge analyzed this case as a 42 U.S.C. § 1983 case against state and county
officials Sheriff Sam Parker, Administrator Ritchie, Lt. Gillespie, and the Chesterfield County
Detention Center and as a Bivens1 action against Attorney Jay Wallace Jordan and the Booking
Marshal. In his complaint, Plaintiff states that on January 22, 2012, while he was incarcerated, his
mother passed away in a car accident and that he requested permission to be able to attend the
viewing of the body at a nearby funeral home. (ECF No. 1 at 3.) He claims he was told by jail
officials that a fee would be imposed to view the body but later learned from his federal attorney and
a booking marshal of a fee associated with transportation to a funeral but that no fee is charged for
transportation to view a body. (ECF No. 1 at 4.) Ultimately, Plaintiff was unable to attend the

1

In Bivens v. Six Unknown Named Agents of Fed. 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 which is
analogous to a claim brought pursuant to 42 U.S.C. § 1983.
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viewing and claims that the process of trying to obtain permission to attend the viewing, receiving
“false information,” and being unable to attend caused him distress, pain, and suffering. (ECF No.
1 at 5.)
The Magistrate Judge concluded that the denial of Plaintiff’s request to be allowed to attend
the viewing of his mother’s body does not state a viable civil rights claim. (ECF No. 10 at 4.) In
reaching her conclusion, the Magistrate Judge considered several federal cases which conclude that
a prisoner has no constitutional right to attend a relative’s funeral. (ECF No. 10 at 4-5.) The
Magistrate Judge also concluded that: 1) none of the listed Defendants could have granted Plaintiff’s
request to allow him to attend the viewing because an order of detention pending trial had already
been entered in Plaintiff’s federal criminal case; 2) Plaintiff is not entitled to compensatory or
punitive damages for mental or emotional distress or anguish; 3) Plaintiff’s attorney in his federal
case had not acted under color of state or federal law; 4) the Chesterfield County Detention Center
is not a person subject to suit under 42 U.S.C. § 1983; and 5) this court cannot “reprimand”
Defendants. (ECF No. 10 at 5-6.) This court agrees with these conclusions.
While Plaintiff has filed objections to the Report and Recommendation, he has not made any
arguments in his Objections that change the well-reasoned analysis set forth by the Magistrate Judge
recommending summary dismissal. Plaintiff states his general agreement with the Magistrate
Judge’s discussion of the background of the claim and but then contends that his argument is really
about the false information he claims to have received from the state and county jail officials. He
further seeks the appointment of an attorney to represent him in this matter. (ECF No. 12 at 1-2.)
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred’” by the Constitution and laws of the United

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States. Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144
n. 3 (1979)); Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a
plaintiff must allege two essential elements: (1) a violation of a right secured by the Constitution or
laws of the United States, 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). Plaintiff’s complaint is subject to
dismissal because it fails to allege the deprivation of a constitutional or other federally-protected
right. To the extent Plaintiff complains that Defendants lied to him or gave him false information,
the court is unaware of any independent constitutional right not to be misinformed or misled by jail
officials. The court finds that the Magistrate Judge correctly applied the relevant and applicable
standards and case law to analyze the merits of Plaintiff’s claims.
CONCLUSION
After a careful review of the record, the applicable law, and the Report and Recommendation
and Objections, the court finds the Magistrate Judge’s recommendation to be proper. Accordingly,
the Report and Recommendation is incorporated herein by reference. This action is DISMISSED
without prejudice and without service of process in accordance with the Report and
Recommendation issued in this case. (ECF No. 10.) Plaintiff’s requests for court-appointed
counsel2 (ECF No. 12 at 2) and to drop Defendants Federal Attorney Jay Wallace Jordan and United
States Booking Marshal of Florence, South Carolina (ECF No. 12-1) are DENIED as MOOT in light

2

There is no constitutional right to have counsel appointed in a civil case. Whisenant v.
Yaum, 739 F.2d 160, 163 (4th Cir. 1984). This court has discretion to appoint counsel for an
indigent in a civil action. 28 U.S.C. § 1915(d); Smith v. Blackledge, 451 F.2d 1201, 1203 (4th
Cir. 1971). The court, however, may appoint counsel in § 1983 cases only when exceptional
circumstances exist. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). After a review of the
record, the court finds that, at this time, this is not a case which clearly reflects a need for the
plaintiff to have counsel appointed.
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of this Order which summarily dismissed the above-captioned case in its entirety.
IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
June 3, 2013

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