Tice v. Dennis

Filing 11

ORDER adopting the 8 Report and Recommendation and dismissing Plaintiff's Complaint without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 3/20/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Joseph Charles Tice,

Civil Action No. 3:18-cv-368-CMC
Plaintiff,

vs.

ORDER

Honorable Judge R. Markley Dennis,
Defendant.
This matter is before the court on Plaintiff’s complaint pursuant to 42 U.S.C. § 1983,
alleging violation of his constitutional rights in the state court when his probation was revoked
based on failure to pay probation fees. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02 (B)(2)(d), D.S.C., the matter was referred to United States Magistrate Judge
Paige J. Gossett for pre-trial proceedings. On March 6, 2018, the Magistrate Judge issued a Report
recommending this matter be summarily dismissed without prejudice, and without issuance and
service of process. ECF No. 8. The Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the serious consequences if he failed to do so.
Plaintiff filed objections on March 15, 2018. ECF No. 10.
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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection
is made. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).

After considering de novo the record, the applicable law, the Report and Recommendation
of the Magistrate Judge, and Plaintiff’s objections, the court agrees with the Report’s
recommendation that the Complaint be dismissed.
In Plaintiff’s objections, he cites Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), for the
proposition that judicial immunity is not absolute. ECF No. 10. While Plaintiff next cites
Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986), noting Rankin was described as “unnecessarily
restrictive,” he also states “Rankin’s ultimate result was not changed.” ECF No. 10 at 2. However,
Ashelman held “[a]s long as the judge’s ultimate acts are judicial actions taken within the court’s
subject matter jurisdiction, immunity applies.” 793 F.2d at 1078. That court explicitly held “[t]o
the extent that Rankin and Beard are to the contrary, they are overruled.” Id.
Plaintiff argues revocation of his probation was unlawful, leading to multiple violations of
his constitutional rights. He also argues Judge Dennis acted without jurisdiction; thus, the
complained of action was not a “judicial act.” ECF No. 10 at 5-8 (“Judge . . .steped [sic]
completely out of the jurisdiction of the court and committed a criminal act when he unlawfuley
[sic] revoked my probation and unlawfuley [sic] put me in prison by braking [sic] the law.”).
The Supreme Court has held judicial immunity overcome only when a judge undertakes a
nonjudicial action (i.e., actions not taken in the judge’s judicial capacity), or when judicial actions
are “taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
It is clear the actions alleged in this case were judicial actions, as Plaintiff was before Judge Dennis
for a criminal probation revocation. Further, it is clear that Plaintiff Judge Dennis’ actions were
not “taken in the complete absence of all jurisdiction.” Even if the judge erred in revoking
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Plaintiff’s probation for failure to pay fees without a finding the failure was willful, immunity still
applies. Id. at 12-13; see also Pierson v. Ray, 386 U.S. 547, 554 (1967) (“Immunity applies even
when the judge is accused of acting maliciously and corruptly.”). Just because Plaintiff alleges
Judge Dennis revoked his probation improperly, contrary to law, does not mean Judge Dennis did
not have subject matter jurisdiction. This objection is overruled.
Plaintiff next argues he brought suit against Judge Dennis in his individual capacity and
thus he is not immune from personal liability under the Eleventh Amendment. ECF No. 10 at 8.
“Personal-capacity suits seek to impose personal liability upon a government official for actions
he takes under color of state law. Official-capacity suits, in contrast, generally represent only
another way of pleading an action against an entity of which an officer is an agent.” Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985). It is true Plaintiff brought his suit against Judge Dennis
in his individual capacity, and as such Defendant is not shielded by Eleventh Amendment
immunity. However, judicial immunity still applies. This objection is overruled.
Accordingly, the court adopts the Report by reference in this Order. Plaintiff’s Complaint
is hereby dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 20, 2018

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