McQune v. Hutto
ORDER AND OPINION adopting in part and declining to adopt in part 13 Report and Recommendation. The complaint is DISMISSED WITH PREJUDICE. The Court FINDS that the complaint is a frivolous filing and therefore counts as a strike under 28 U.S.C. § 1915(g). This dismissal counts as a strike under the PLRA. Signed by Honorable Richard M Gergel on 9/5/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Walter McQune, #299882,
Civil Action No. 2: 17-1747-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that the Court summarily dismiss the complaint without prejudice and
without service of process. For the reasons set forth below, the Court adopts in part and declines
to adopt in part the Report and Recommendation, and summarily dismisses the complaint with
prejudice and without service of process.
Defendant was indicted for murder and other charges in the Colleton County Court of
General Sessions in 2003. He pleaded guilty to manslaughter and he was sentenced to 25 years
On November 4, 2016, Plaintiff submitted a "proposed order, answer, [and]
objections to conditional order of dismissal" to the Colleton County Court of General Sessions
regarding his second post-conviction relief ("PCR") application. According to Plaintiff, Defendant
Hutto, law clerk for the Honorable Perry M. Buckner, informed him that "it is not clear what this
[proposed] Order would demand of the Court and Attorney General" and that "Judge Buckner
cannot sign this order in its current form ." Instead of submitting an amended proposed order,
Plaintiff filed this federal lawsuit against Judge Buckner' s law clerk. Plaintiff seeks $305,000 in
damages and declaratory and injunctive relief.
Report and Recommendation
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)(l). 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 itself that 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).
Prisoner Litigation Reform Act
This action been filed informa pauperis under 28 U.S.C. § 1915, which permits an indigent
litigant to commence an action in federal court without payment of costs. The statute allows a
district court to dismiss summarily an action that "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).
"With the Prisoner Litigation Reform Act
("PLRA"), Congress sought to reduce the number of frivolous lawsuits flooding the federal
courts." Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013). "Congress did so in part by enacting
28 U.S.C. § 1915(g), a "three-strikes" statute providing that if 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." Id.
The Court fully agrees with the determination of the Magistrate Judge that this action
should be dismissed summarily and without service of process. Judicial law clerks have absolute
quasi-judicial immunity from suits for money damages arising from their official acts. Jackson v.
Houck, 181 F. App'x 372, 373 (4th Cir. 2006) ("Likewise, law clerks . .. are also entitled to
absolute judicial immunity when assisting the judge in carrying out the farmer's judicial
functions." (internal quotation marks omitted)). Judge Buckner' s law clerk indisputably was
assisting Judge Buckner' s judicial function when responding to Plaintiffs proposed order.
Judicial and quasi-judicial absolute immunity does not extend to actions for declaratory or
injunctive relief. See Pulliam v. Allen, 466 U.S. 522, 540-42 (1984). But the Federal Courts
Improvement Act of 1996, Pub. L. No 104- 317, 110 Stat. 3 84 7 (1996), amended § 1983 to bar
injunctive relief against a judicial officer "for an act or omission taken in such officer' s judicial
capacity ... unless a declaratory decree was violated or declaratory relief was unavailable." 42
U.S .C. § 1983. Plaintiff does not allege that a declaratory decree was violated, nor does he contend
that declaratory relief was unavailable in state court, and therefore Plaintiff s request for injunctive
relief is subject to dismissal. Further, the Rooker-Feldman doctrine bars Plaintiffs requested
declaratory relief. Plaintiff seeks declaratory relief stating that the state courts erred in considering
Plaintiffs PCR applications; specifically, that an evidentiary hearing should have been held on his
claim that he was mentally incompetent when he pleaded guilty to manslaughter. (See Dkt. No. 1
iii! 9- 22.)
But federal courts (other than the Supreme Court) may not review state court decisions.
Dell Webb Communities, Inc. v. Carlson , 817 F.3d 867, 872 (4th Cir. 2016).
The Court however declines to adopt the Report and Recommendation insofar as it
recommends dismissal without prejudice.
Dismissal on judicial or quasi-judicial absolute
immunity grounds is properly with prejudice. See Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir.
1999). State-court defendants may not seek declaratory relief in § 1983 actions as a means to
appeal decisions in state-court PCR proceedings. The injunctive relief sought is unavailable the
same reason; moreover, it is barred by statute. Plaintiff cannot cure these deficiencies through
amendment of the complaint; dismissal with prejudice therefore is appropriate. See Alvarez-Soto
v. B. Frank Joy, LLC, --- F. Supp. 3d ----, 2017 WL 2731300, at
(D. Md. June 23, 2017)
(" [P]laintiffs must be given ' every opportunity to cure a formal defect in his pleading' unless it
' appears to a certainty that the plaintiff cannot state a claim." ' (quoting Ostrzenski, 177 F .3d at
Further, the Court finds this action is frivolous and summarily dismisses it with prejudice
for that reason as well. Under the in forma pauperis statute, a complaint is frivolous "where it
lacks an arguable basis either in law or fact. " Ne itzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiffs complaint-seeking over $300,000 from a state-court law clerk because he told Plaintiff
the judge would not sign his proposed order and seeking equitable relief directing state-court PCR
proceedings to conform to Plaintiffs desires-manifestly lacks any arguable basis in law or fact.
A defendant unhappy with a judicial action in state-court proceedings regarding his criminal
convictions cannot sue the judge or his staff in federal court. Any attempt to do so is frivolous. If
Plaintiff continues to file frivolous pleadings, he risks the accumulation of three strikes against
him and the resulting denial of future requests for in forma pauper is status.
For the foregoing reasons, the Court ADOPTS IN PART AND DECLINES TO ADOPT
IN PART the Report and Recommendation of the Magistrate Judge (Dkt. No. 13). The complaint
is DISMISSED WITH PREJUDICE. The Court FINDS that the complaint is a frivolous filing
and therefore counts as a strike under 28 U.S.C. § 1915(g). This dismissal counts as a strike under
AND IT IS SO ORDERED.
United States District Court Judge
September ~, 2017
Charleston, South Carolina
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?