Smart v. Tesner et al

Filing 5

REPORT AND RECOMMENDATIONS recommending 1 Complaint filed by Robert Dale Smart, be dismissed without prejudice and without issuance and service of process. Also recommending that this case be deemed a "strike" for purposes of the "three strikes" rule of 28 U.S.C. 1915(g). Objections to R&R due by 3/17/2006. Signed by Judge Bruce Howe Hendricks on 2/28/06. (kmca)

Smart v. Tesner et al

Doc. 5

3:06-cv-00451-GRA

Date Filed 02/28/2006

Entry Number 5

Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Robert Dale Smart, #272017,
P l a i n ti f f ,

vs. John Edward "Buddy" Tesner; Connie Jeanette "Jeannie" Tesner,
Defendants.

____________________________________________

) ) ) ) ) ) ) ) ) )

C/A No. 3:06-451-GRA-BHH

Report and Recommendation

INTRODUCTION This is a civil rights action filed pro se by a state prison inmate.1 Plaintiff is currently incarcerated at the Lee Correctional Institution, serving a sentence entered by the Court of General Sessions of Union County. In the Complaint filed in this case, Plaintiff alleges that the Defendants, two Union County residents, violated his federal constitutional rights and poisoned him. Plaintiff's allegations stem from his relationships prior to his incarceration with both

Defendants and their child or ward, the alleged victim in the criminal case that resulted in Plaintiff's current incarceration. Plaintiff claims that, in addition to their long-term poisoning of him with arsenic, both Defendants contributed to his current incarceration by giving false testimony against him in connection with the criminal case. Plaintiff seeks a trial by jury, reimbursement for court costs, and the criminal prosecution of Defendants for "poisoning, burglary, 1st degree criminal conduct, obstruction of justice, conspiracy, obstruction of freedom of speech and religion." See Entry 1, at 35; Entry 2, answer 2. Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § § 1915, 1915A, and the Prison Litigation Reform Act of 1996,
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Pursuant to 28 U.S.C. §636(b)(1), and Local Rule 73.02(B)(2)(e), D.S.C., this m a g is tr a te judge is a u th o r iz e d to review all pretrial m a tte r s in such pro se cases and to subm it findings and recom m e n d a tio n s t o the District Court. See also 28 U.S.C. § § 1915(e); 1915A (as soon as possible after docketing, district c o u r ts should review prisoner cases to determ in e whether they are subject to sum m a r y dism is s a l) .

Dockets.Justia.com

3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 2 of 8 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. W illiams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). Pro se complaints are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 & n.7 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. See Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). Nevertheless, 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. Department of Social Servs., 901 F.2d 387(4th Cir. 1990). Even under this less

stringent standard, however, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B). DISCUSSION In order for this Court to hear and decide a case, the Court must, first, have jurisdiction over the subject matter of the litigation. It is well settled that federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, see Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986), which is not to be expanded by judicial decree, see American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951). It is to be presumed that a cause lies outside this limited jurisdiction, see Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11 (1799), and the burden of establishing the contrary rests upon the party asserting jurisdiction, see McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). The two most commonly recognized and

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3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 3 of 8 utilized bases for federal court jurisdiction are (1) "federal question," 28 U.S.C. § 1331, and (2) "diversity of citizenship." 28 U.S.C. § 1332. The allegations contained in the Complaint filed by Plaintiff in this case do not fall within the scope of either form of this Court's limited jurisdiction. First, there is clearly no basis for a finding of diversity jurisdiction over this Complaint. The diversity statute, 28 U.S.C. § 1332(a), requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00): (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between) (1) citizens of different States[.] 28 U.S.C. § 1332 (emphasis added). Complete diversity of parties in a case means that no party on one side may be a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 & nn. 13-16 (1978). This Court has no diversity jurisdiction under 28 U.S.C. § 1332 over this case because according to the information provided by Plaintiff when he filed his Complaint, Plaintiff and both Defendants are residents of South Carolina. Although it is not clear whether Plaintiff's allegations would be sufficient to support a finding that the $75,000 jurisdictional amount would be in controversy in this case, this does not matter in this case because, in absence of diversity of citizenship, the amount in controversy is irrelevant. Second, it is clear that the essential allegations contained in the Complaint are insufficient to show that the case is one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. That is, the Complaint does not state a claim cognizable under this Court's "federal question" jurisdiction even though Plaintiff claims that Defendants violated his constitutional rights. This Court is not bound by such allegations and is entitled to disregard them if the facts do not support Plaintiff's contentions, as here. When considering the issue of whether a case is one "arising under the Constitution . . ." or, in other words, whether "federal question"

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3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 4 of 8 jurisdiction is present, a federal court is not bound by the parties' characterization of a case. District courts are authorized to disregard such characterizations to avoid "unjust manipulation or avoidance of its jurisdiction." See Lyon v. Centimark Corp., 805 F. Supp. 333, 334-35 (E.D. N.C. 1992); see also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908); cf. Gully v. First Nat'l Bank in Meridian, 299 U.S. 109 (1936)("Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit."); Bonner v. Circuit Ct. of St. Louis, 526 F.2d 1331, 1336 (8th Cir. 1975)(federal constitutional claims are cognizable in both state courts and in federal courts: "Congress and the federal courts have consistently recognized that federal courts should permit state courts to try state cases, and that, where constitutional issues arise, state court judges are fully competent to handle them subject to Supreme Court review."). In order to state a claim for damages against anyone under 42 U.S.C. § 1983,2 an aggrieved party must sufficiently allege that he or she was injured by "the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws" by a "person" acting "under color of state law." See 42 U.S.C. § 1983 (emphasis added); Monroe v. Page, 365 U.S. 167 (1961); see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (2002). Purely private conduct such as that alleged in this case, no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under 42 U.S.C. § 1983 or under the Fourteenth Amendment, the two most common provisions under which persons come into federal court to claim that others have violated their constitutional rights. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961). Because the United States Constitution regulates only the Government,

To the extent that he claim s constitutional violations, Plaintiff's Com p la in t is properly before this Court p u r s u a n t to 42 U.S.C. § 1983. Section 1983 is the procedural m e c h a n is m through which Congress provided a private civil cause of action based on allegations of federal constitutional violations by persons acting under c o lo r of state law. See Jennings v. Davis, 476 F.2d 1271 (8 th Cir. 1973). The purpose of section 1983 is to d e te r state actors from using badge of their authority to deprive individuals of their federally guaranteed rights a n d to provide relief to victim s if such deterrence fails. See McKnight v. Rees, 88 F.3d 417(6th Cir. 1 9 9 6 ) ( e m p h a s is added).

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3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 5 of 8 not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes "state action." See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and "the party charged with the [conduct] must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. at 937; see United States v. International Brotherhood of Teamsters, Chauffeurs, W arehousemen Helpers of America, AFL-CIO, 941 F.2d 1292 (2d Cir.1991). As noted, there are no allegations in Plaintiff's Complaint which attribute any of Defendants' actions to state action; therefore, the allegations contained in Plaintiff's Complaint do not establish "federal question" jurisdiction under § 1983 in this case. Further, Plaintiff does not refer to any other federal law allegedly violated by Defendant's actions other than the alleged constitutional violations nor are there any allegations that Defendants have failed or refused to act because of racial, religious, gender or other illegal discrimination, and there are no other bases for the exercise of federal question jurisdiction evident from the face of the Complaint. Poisoning, obstruction of justice, burglary, 1st degree criminal conduct, and conspiracy are all state-based criminal or civil causes of actions and they cannot be heard by this Court in absence of either federal question or diversity jurisdiction. If Plaintiff wishes to pursue such claims, he should do so in state court, not in this federal court. Moreover, even if federal jurisdiction were available for Plaintiff's claims against Defendants, to the extent that Plaintiff attempts to sue Defendants for giving testimony against him in connection with his criminal case, the Complaint would still be subject to at least partial dismissal under the doctrine of witness immunity. It is clear that the Defendants, who apparently testified against Plaintiff, cannot be sued under 42 U.S.C. § 1983 for their providing testimony in Plaintiff's criminal case. A rule of absolute witness immunity has been adopted by the majority

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3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 6 of 8 of Courts of Appeals. See Brawer v. Horowitz, 535 F.2d 830, 836- 37 (3d Cir. 1976) (lay witness in federal court; Bivens action); Burke v. Miller, 580 F.2d 108 (4th Cir. 1978) (state medical examiner; § 1983 action); Charles v. Wade, 665 F.2d 661 (5th Cir. 1982), cert. pending, No. 81-1881 (police officer witness; § 1983 suit); Myers v. Bull, 599 F.2d 863, 866 (8th Cir. 1979) (police officer witness; § 1983 suit); Blevins v. Ford, 572 F.2d 1336 (9th Cir. 1978) (private witnesses and former assistant U.S. attorney; action under §1983 and the Fifth Amendment). Additionally, since the United States Supreme Court's decision in Briscoe v. LaHue, 460 U.S. 325 (1983), most circuits have rejected § 1983 claims alleging that the defendants who were testifying witnesses were not entitled to absolute immunity because they were engaged in a conspiracy with each other or with the prosecutor to offer perjurious testimony in a criminal case against the plaintiff. See Franklin v. Terr, 201 F.3d 1098, 1101-02 (9th Cir. 2000) (involving allegation of conspiracy between two testifying witnesses); Hunt v. Bennett, 17 F.3d 1263, 1267-68 (10th Cir. 1994) (holding prosecutor and police officer witness absolutely immune from claim of conspiracy to present false testimony); Snelling v. Westhoff, 972 F.2d 199, 200 (8th Cir. 1992) (per curiam) (rejecting conspiracy claim and pointing out that plaintiff's conspiracy allegations were "conclusory"); McArdle v. Tronetti, 961 F.2d 1083, 1085-86 (3d Cir. 1992) (involving testifying witnesses); House v. Belford, 956 F.2d 711, 720-21 (7th Cir. 1992) (rejecting claim of conspiracy between prosecutor and testifying witness on ground of absolute immunity); Miller v. Glanz, 948 F.2d 1562, 1570-71 (10th Cir. 1991) (rejecting claim for conspiracy among testifying witnesses); Alioto v. City of Shively, 835 F.2d 1173, 1174 & n. 1 (6th Cir. 1987) (same). RECOMMENDATION Accordingly, it is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process. See Denton v. Hernandez; Neitzke v. Williams; Haines v. Kerner; Brown v. Briscoe, 998 F.2d 201, 202-04 & n. * (4th Cir. 1993); Boyce v. Alizaduh; Todd v. Baskerville, 712 F.2d at 74; see also 28 U.S.C. § 1915(e)(2)(B);

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3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 7 of 8 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). Since Plaintiff seeks monetary damages in this case and both of Defendants in this case are immune from suit, 28 U.S.C. § 1915A(b)(2) is applicable in this case. Additionally, several courts have held that a dismissal under Heck constitutes a "strike" under 28 U.S.C. § 1915(e)(2) and (g). Hence, I also recommend that this case be deemed a "strike" for purposes of the "three strikes" rule of 28 U.S.C. § 1915(g). Plaintiff's attention is directed to the important notice on the next page. Respectfully submitted,

February 28 , 2006 Greenville, South Carolina

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3:06-cv-00451-GRA Date Filed 02/28/2006 Entry Number 5 Page 8 of 8 Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So
T h e parties are hereby notified that any objections to the attached Report and Recommendation (or Order and R e c o m m e n d a t io n ) must be filed within ten (10) days of the date of service. 28 U.S.C. § 636; Fed. R. Civ. P. 72(b). The time c a l c u l a t i o n of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. F e d . R. Civ. P. 6. A magistrate judge makes only a recommendation, and the authority to make a final determination in this case r e s t s with the United States District Judge. See Mathews v. W e b e r , 423 U.S. 261, 270-71 (1976); Estrada v. W itk o w sk i, 816 F. S u p p . 408, 410 (D.S.C. 1993). D u r in g the period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, written o b j e c t io n s to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. A n y written objections must specifically identify the portions of the Report and Recommendation to which objections are m a d e and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44 (D.S.C. 1992); Oliverson v. W e s t Valley C ity , 875 F. Supp. 1465, 1467 (D. Utah 1995). Failure to file specific, written objections shall constitute a waiver of a party's right t o further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See U n ite d States v. Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir. 1984); W r ig h t v. Collins, 766 F.2d 841, 845-847 & nn. 1-3 (4th Cir. 1 9 8 5 ) . Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does n o t file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions o f the magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on a p p e a l , even if objections are filed on other issues. See Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991); s e e also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.)(party precluded from raising on appeal factual issue to which it did n o t object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard,, the court stated that general, non-specific o b j e c tio n s are not sufficient:
A general objection to the entirety of the [m a g i s t r a t e judge's] report has the same effects as w o u l d a failure to object. The district court's attention is not focused on any specific issues for review , thereby m a k in g the initial reference to the [magistrate judge] useless. * * * T h i s duplication of time and effort w a s t e s j u d i c ia l resources rather than saving them, and runs contrary to the purposes of the M a g i s t r a t e s A c t . * * * W e w o u l d hardly countenance an appellant's brief simply objecting to the district court's determination w i t h o u t explaining the source of the error.

A c c o r d Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the court held that the appellant, who proceeded p r o se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district c o u rt:
J u s t as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no i s s u e for review . * * * A district judge should not have to guess w h a t arguments an objecting party depends o n w h e n review i n g a [magistrate judge's] report.

S e e also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)("no de novo review if objections are untimely or general"; which in v o l v e d a pro se litigant); Goney v. Clark, 749 F.2d 5, 7 n. 1 (3d Cir. 1984)("plaintiff's objections lacked the specificity to trigger

This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See W rig h t v. Collins; Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989). Filing by mail
d e novo review"). p u r s u a n t to Fed. R. Civ. P. 5 may be accomplished by mailing objections addressed as follows:

Larry W. Propes, Clerk United States District Court Post Office Box 10768 Greenville, South Carolina 29603

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