Corder v. South Carolina, The State of et al

Filing 9

ORDER adopting 7 Report and Recommendation of Magistrate Judge Mary Gordon Baker. The Court DISMISSES WITH PREJUDICE the complaint (Dkt. No. 1 ). This dismissal counts as a "strike" for purposes of 28 U.S.C. § 1915(g). Signed by Honorable Richard M Gergel on 3/23/2016.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Yohanan Corder,

Civil Action No. 2:16-401-RMG

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Plaintiff,

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v.

ORDER

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The State of South Carolina, Alan Wilson,
Attorney General, and Scarlett A. Wilson,
Solicitor, Ninth Judicial Circuit,

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Defendants.

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This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary dismissal of the complaint. For the below reasons, the Court
adopts the Report and Recommendation as the Order of the Court and dismisses the complaint.

I.

Background
Plaintiff is currently held at the Charleston County Detention Center. (Dkt. No.1.) He is

charged (arrested on May 1, 2015 and indicted on October 19, 2015) with four counts of entering
a financial institution with intent to steal and one count of possession of heroin. See Court of
General Sessions for Charleston County, Case Nos. 15-02235, 15-04539, 15-05624, & 15-05829.
A state record check shows that Plaintiff has additional pending criminal charges, including
charges for first-degree assault and battery and possession of cocaine. See Case Nos. 2015AI010201370, 2015-AI010201371, & 2015-AI011400045. He is represented by counsel in his
state criminal cases but proceeds pro se here. (Dkt. No.1 at 2.) Plaintiff alleges that the evidence
against him is insufficient to establish probable cause for his continued pretrial confinement; that
he was denied his right to attend a preliminary hearing; that his money, which he needs to retain
counsel, was seized without cause; that he has not been allowed an opportunity to enter a plea; and

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that he has been denied a speedy trial. (Id. at 3) State records. CITE. He asks the Court to award
$10,050,000 in monetary damages against the State of South Carolina. (Dkt. No.1 at 5.) He also
names two prosecutors, Attorney General Wilson and Solicitor Wilson, as Defendants but asks for
no relief regarding them. (Id.) Plaintiff filed the present action pursuant to 42 U.S.C. § 1983 on
February 8, 2016, (id.) and, after initial review, the Magistrate Judge recommended summary
dismissal on March 3, 2016 (Dkt. No.7). No objections to the Report and Recommendation were
filed.

II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, 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)(I). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itselfthat there is no clear error on the face
of the record in order to accept the recommendation," see Diamond v. Colonial Life & Accident

Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby
v. Davis, 718 F.2d 198 (4th Cir. 1983).
The Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an
action in federal court without prepaying the administrative costs of proceeding with the lawsuit.
28 U.S.C. § 1915(a)(I). To protect against possible abuses of this privilege, the statute allows the
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court to dismiss the case upon finding that the action is "frivolous or malicious," "fails to state a
claim on which relief may be granted," or "seeks monetary relief against a defendant who is
immune from such relief." 28 U.S.C. §1915(e)(2)(B). A finding of frivolity can be made where
the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be
dismissed sua sponte "at any time." Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
The PLRA, at 28 U.S.C. § 1915(g) contains a "three strike" provision:
In no event shall a prisoner bring a civil action or appeal ajudgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
"[I]f a prisoner has already had three cases dismissed as frivolous, malicious, or for failure to state
a claim for which relief may be granted, the prisoner generally may not proceed [in forma
pauperis] but rather must pay up-front all filing fees for his subsequent suits." Blakely v. Wards,

738 F.3d 607,609 (4th Cir. 2013). After receiving three strikes, a plaintiff must pay the full filing
fee for almost any non-habeas civil action he might wish to file. Id. at 610.
With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a
claim on the basis of a dispositive issue of law." Neitzke, 490 U.S. at 326. The "complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face. '" Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544,570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions." ld. "Unless otherwise specified, a dismissal for

failure to state a claim under Rule 12(b)(6) is presumed to be both ajudgment on the merits and to
be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).

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Pro se pleadings are given liberal construction and are held to a less stringent standard than

formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89,94 (2007); De'Lonta v.
Angelone, 330 FJd 630, 633 (4th Cir. 2003). However, giving "liberal construction" does not

mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable
claim. "Principles requiring generous construction of pro se complaints ... [do] not require ...
courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton,
775 F.2d 1274,1278 (4th Cir.1985).

III.

Analysis
The Magistrate Judge found that the petition fails to state a claim for relief and the Court

agrees. Plaintiffs request for monetary relief from the State of South Carolina is barred by the
EleventhAmendment. See U.S. Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 663 (1974).
If Plaintiff means to sue the two state prosecutors he names as Defendants in their official
capacities, his suit is likewise barred by the Eleventh Amendment. State officials acting in their
official capacity are "arm[s] of the State" protected by South Carolina's immunity. Mt. Healthy
City Sch.Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Cromer v. Brown, 88 FJd 1315,

1332 (4th Cir. 1996). If Plaintiff means to sue those prosecutors in their individual capacities, his
suit is barred by the prosecutors' absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993) ("acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or
for trial, and which occur in the course of his role as an advocate for the State, are entitled to the
protections of absolute immunity"); Nivens v. Gilchrist, 444 FJd 237, 249-50 (4th Cir. 2006)
(holding that absolute prosecutorial immunity barred damages claim against prosecutor in
individual capacity). Plaintiffs claims are therefore subject to summary dismissal pursuant to 28
U.C.C. § 1915(e)(2)(B)(iii). Because the deficiency in the complaint cannot be cured by more

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specific pleading, dismissal with prejudice is appropriate. Adams v. Rice, 40 FJd 72, 76 n.l (4th
Cir. 1994).
Furthermore, Plaintiff fails to allege that the two prosecutors deprived him of any
constitutional right. Although he alleges a deprivation of his constitutional right to a speedy trial,
he fails to allege that the purported violation resulted from anything Defendants may have done.
"[W]ithout such personal involvement, there can be no liability under section 1983." Reaves v.
Richardson, Civ. No. 4:09-820-TLW-SVH, 2011 WL 2119318, *6 (D.S.C. Mar. 1,2011), adopted
by 2011 WL 2112100 (D.S.C. May 27, 2011). Instead of alleging that he suffered a constitutional

deprivation due to conduct by a named Defendant, Plaintiff apparently names the head prosecutor
for the judicial circuit and the Attorney General of the State of South Carolina on a theory of
respondeat superior. But "vicarious liability is inapplicable to ... § 1983 suits, plaintiff must

plead that each Government-official defendant, through the official's own actions, has violated the
Constitution." Iqbal, 556 U.S. at 676.
Additionally, Plaintiffs allegations that his rights have been violated appear to rest on
misapprehensions concerning his rights or factual inaccuracies demonstrated by public records.
Having been indicted, Plaintiff has no right to a preliminary hearing. Law v. Sc. Dept. of Corrs.,
629 S.E.2d 642, 649 (2006). The indictment provides probable cause for his detention. United
States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007). Plaintiff claims that his right to a

speedy trial has been violated, yet he has been detained less than one year, and was indicted only
five months ago. Cf Doggett v. United States, 505 U.S. 647, 651-52 & n.1 (holding that "to
trigger a speedy trial analysis, an accused must alleged that the interval between accusation and
trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay," and
noting that the threshold is typically placed at a one-year delay). Plaintiff claims that he has not

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had an opportunity "to enter a plea for the record," yet state records reflect that he has appeared in
state court on these charges several times.

See Charleston County Clerk of Court,

http://jcmsweb.charlestoncounty.org! PublicIndexlPISearch, last visited March 22, 2016. Plaintiff
complains of a seizure of his money but fails to allege how much money was seized, who seized
it, why it was seized, or why the seizure was unlawful. He does appear to allege that the seizure
has prevented him from obtaining counsel of choice (Dkt. No.1 at 3); if that is the basis for his
challenge to the seizure, his claim is foreclosed by Kaley v. United States. See 134 S. Ct. 1090,
1102-03 (2014) (holding that there is no right to an adversarial procedure to determine probable
cause for an asset seizure even if the assets are needed to retain counsel of choice).
In sum, Plaintiff seeks monetary relief from immune Defendants, fails to state how those
Defendants did anything resulting in a deprivation of his constitutional rights, and fails to allege
any violation of his constitutional rights at all. His complaint is therefore subject to summary
dismissal. Because more specific pleading could not affect Defendants' absolute immunity from
this suit, the complaint is subject to dismissal with prejudice.

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge (Dkt. No.9) as the Order of the Court and DISMISSES WITH PREJUDICE
the complaint (Dkt. No.1). This dismissal counts as a "strike" for purposes of28 U.S.C. § 1915(g).
AND IT IS SO ORDERED.

March ~, 2016
Charleston, South Carolina
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