Trout v. Wickensimer et al

Filing 18

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action without prejudice and without issuance and service of process, for 14 Report and Recommendations. Signed by Honorable Joseph F Anderson, Jr on November 30, 2010. (kbos)

T rout v. Wickensimer et al

Do c. 18

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

H a ro ld A. Trout,

) ) P l a in tif f , ) vs. ) ) Paul B. Wickensimer; Robert M. Ariail; ) H e n ry D. McMaster; James R. Parks; and ) E rn e st Hamilton, ) ) D e f e n d a n ts . ) ______________________________________ )

C/A No.: 3:10-1297-JFA-JRM

ORDER

T h e pro se plaintiff, Harold A. Trout, brings this action pursuant to 42 U.S.C. § 1983.1 A t the time this action was filed, he was an inmate at the Federal Corrections Institution in B e a v e r, West Virginia. Plaintiff alleges that the defendants violated his constitutional rights to due process and access to the courts by refusing to file a motion to dismiss an indictment a lle g e d ly pending against him before the South Carolina State Grand Jury. He seeks money d a m a g e s and injunctive relief. T h e Magistrate Judge assigned to this action 2 has prepared a thorough Report and R e c o m m e n d a tio n wherein he suggests that the court should dismiss this action for a variety

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Plaintiff paid the full $350 filing fee.

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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o f reasons, including failure to state a claim, immunity, and abstention. The Report sets forth in detail the relevant facts and standards of law on this matter, and the court incorporates such w ith o u t a recitation. T h e plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n and the plaintiff filed timely objections to the Report. Thus, it appears this m a tte r is ripe for resolution. T h e plaintiff was convicted by a federal jury in this District on April 22, 2009, for two c o u n ts of fraud activity connected with computers and two counts of interception and d is c lo s u re of wire or oral communications. See United States v. Harold Anthony Trout, C/A N o . 6:08-1055-HFF.3 T h e Honorable Henry F. Floyd, United States District Judge for the District of South C a ro lin a , sentenced the defendant in July 2009 to a term of imprisonment of one day and one ye a r . Plaintiff is no longer incarcerated at the Beckley Federal Correctional Institution. It a p p e a rs that he has been released from his sentence. As the Magistrate Judge notes in his Report, the crux of plaintiff's claim is that he se e k s to file a motion to dismiss an indictment allegedly pending against him before the South C a ro lin a State Grand Jury in case number 2009-GS-47-00006. He argues that the named d e f en d a n ts have refused to file or assist him file his motion with the Grand Jury in violation

This court may take judicial notice of the plaintiff's prior or pending actions. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)(district court may take judicial notice of its own files and records). See also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)("We note that `the most frequent use of judicial notice is in noticing the content of court records.'").

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o f his constitutional rights of access to the courts and due process. Plaintiff also seeks an im m e d i a te injunction from this court ordering the defendants to file his motion to dismiss. T h e complaint has not been served on the defendants. A s an initial matter, the plaintiff alleges that he is involved in an ongoing state criminal p ro c e ed in g . In Younger v. Harris, 401 U.S. 37, 43­44 (1971), the Supreme Court has held th a t a federal could should not equitably interfere with state criminal proceedings, "except in th e most narrow and extraordinary of circumstances." Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). T h e Fourth Circuit Court of Appeals has set forth several criterion to determine when a b ste n tio n is appropriate: "(1) there are ongoing state judicial proceedings; (2) the proceedings i m p lic a te important state interests; and (3) there is an adequate opportunity to raise federal c l a i m s in the state proceedings." Martin Marietta Corp. v. Maryland Comm'n on Human R e la tio n s , 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex County Ethics Comm'n v. G a r d e n State Bar Ass'n., 457 U.S. 423, 432 (1982). Here, the plaintiff claims that several of the defendants acted under color of state law a n d denied his constitutional rights of access to the courts and due process. In his objections, t h e plaintiff argues that the Magistrate Judge is incorrect in his conclusions with regard to Y o u n g e r v. Harris. The plaintiff contends that he is not seeking to have the court stop or in f lu e n c e the state court proceeding. Rather, the plaintiff indicates that he "is simply a tte m p tin g to make corrupt officials move forward and follow their own rules and the U.S.

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C o n s titu tio n , by allowing his motion to be filed in their court." The Magistrate Judge also opines that this action should be dismissed because this c o u rt does not have jurisdiction to grant mandamus relief against state officials or to review s ta te court orders. See Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4 th Cir. 1969). The Magistrate Judge suggests that although this case is not formally d e s i g n a te d as a petition for a writ of mandamus, such is the substance of what the plaintiff se e k s. A writ of mandamus is issued only in the rarest of circumstances and it is a drastic re m e d y. United States v. Sosa, 364 F.3d 507, 511 (4th Cir. 2004); In Re: Lockheed Martin C o r p ., 503 F,3d 351 (4th Cir. 2007). This court finds that both Younger and Sosa counsel against this court intervening in th e state court grand jury action. A f te r a careful review of the record, the applicable law, and the Report and R ec o m m en d atio n , and the plaintiff's objections thereto, the court finds the Magistrate Judge's re c o m m e n d a tio n to be proper. Accordingly, the Report and Recommendation is incorporated h e re in by reference and this action is dismissed without prejudice and without issuance and s e rv i c e of process. IT IS SO ORDERED.

N o v e m b e r 30, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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