Carroll v. United States et al

Filing 49

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS the Report of the Magistrate Judge (ECF No. 30 ). It is therefore ordered that this action (ECF No. 1 ) is DISMISSED with prejudice. Additionally, Plaintiffs' Motion for Preliminary Injunction (ECF No. 8 ), Motion to Amend/Correct Complaint (ECF No. 33 ), Motion to Impose Summons Service Process Fees upon the Defendants (ECF No. 34 ), and Second Motion for issuance of Subpoena (ECF No. 45 ) are DENIED. IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 2/27/2015. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Cory Conell Carroll, Brian Schumaker,

)
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Plaintiffs,
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)
v.
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United States, Eric Holder, Charles E.
)
Samuels Jr., Andrew Mansukhani,
)
Nicole C. English, Christopher Zych,
)
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Defendants.
)
____________________________________)

Civil Action No. 5:14-cv-02167-JMC
ORDER AND OPINION

Plaintiffs Cory Conell Carroll and Brian Schumaker (“Plaintiffs”) filed this pro se action
pursuant to 42 U.S.C. § 1983. Plaintiffs allege Bill H.R. 3190 was not properly enacted, and thus
18 U.S.C. § 3231, which grants federal district courts original jurisdiction over matters
concerning federal laws, is invalid. (ECF No. 1.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Kaymani D. West for pre-trial handling. On August 22, 2014,
the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court
summarily dismiss the case, overrule Plaintiff Schumaker’s objections to the initial order in this
case, and deny Plaintiffs’ Motion for a Preliminary Injunction. (ECF No. 30.) This review
considers Plaintiffs’ Objections and Clarifications to Magistrate’s Order and Participation, filed
August 6, 2014 (ECF No. 16), Objections to Magistrate’s Orders and Report and
Recommendation, filed September 15, 2014 (ECF No. 40), and Supplemental Objection Brief,
filed January 28, 2015 (ECF No. 44-1). For the reasons set forth herein, the court ACCEPTS
the Magistrate Judge’s Report. The court thereby DISMISSES this action (ECF No. 1) and
DENIES Plaintiff’s Motion for a Preliminary Injunction (ECF No. 8).
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I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed their Complaint on June 5, 2014, naming themselves as Plaintiffs acting
on their own behalf and additionally as “agents” on behalf of 75 other federal prisoners. (ECF
No. 1 at 3-4.) Plaintiffs followed with a Motion for Preliminary Injunction on June 23, 2014
(ECF No. 8), and a Motion for Issuance of Subpoena on July 11, 2014, requesting the issuance of
a subpoena duces tecum upon the Clerk of the United States House of Representatives to produce
signature pages related to the passage of 18 U.S.C. § 3231 (ECF No. 12). On July 17, 2014, the
Magistrate Judge issued a Proper Form Order, informing Plaintiffs that if the case was not
brought into proper form within 21 days, the action could be subject to dismissal under Federal
Rule of Civil Procedure 41.

(ECF No. 13.) Specifically, the Magistrate Judge instructed

Plaintiff Schumaker to pay the remaining $50 administrative fee in addition to the $350 filing fee
he had paid and instructed Plaintiff Carroll to pay the full $400 filing fee or complete the proper
forms to show he is indigent and cannot pay. (Id. at 2.) Plaintiffs were further instructed to
complete the proper summons forms for each named Defendant and were warned no process
would issue until all the specified items had been reviewed by the Magistrate Judge. (Id. at 2-3.)
On August 6, 2014, Plaintiffs filed Objections and Clarifications to Magistrate’s Order
and Participation, objecting to the Magistrate Judge’s findings and orders in the Proper Form
Order, and objecting to her further participation in the case. (ECF No. 16.) Plaintiffs objected
specifically to the requirement that both Plaintiffs need to submit the filing fee, arguing the
actions had been joined as one under Federal Rule of Civil Procedure 20. (Id. at 4.) Despite the
protest, Plaintiff Schumaker issued a request to withdraw the remaining $50 from his prison
account for the remainder of his filing fee. (Id.) However, Plaintiff Carroll completed the forms
necessary to show he is indigent and unable to pay the fee, “but is currently withholding its

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submission pending Judge Childs[’] consideration of these objections and issuing her final Order
in this regard.” (Id.) Also on August 6, 2014, Plaintiffs filed a Motion for Recusal, requesting
the Magistrate Judge recuse herself (ECF No. 19), which was denied on August 18, 2014 (ECF
No. 25).
On August 22, 2014, the Magistrate Judge issued the Report, recommending the court
summarily dismiss the Complaint. (ECF No. 30.) First, the Magistrate Judge found that since
Plaintiff Carroll had failed to bring his case into proper form by either paying the filing fee or
filing papers to show he is indigent, he failed to comply with the court’s directions and his claims
are subject to dismissal. (Id. at 5.) Additionally, the Magistrate Judge found that any attempted
joinder of the other 75 prisoners who Plaintiffs purported to represent should also be denied, as
pro se litigants may not represent other pro se litigants. (Id. at 7.) Further, the Magistrate Judge
recommended denying Plaintiffs’ Motion for Preliminary Injunction, noting that “a large part of
the relief requested cannot be legally granted by this court,” and that Plaintiffs were not likely to
succeed on the merits and therefore could not make the required showing to be entitled to a
preliminary injunction.

(Id. at 11-12.)

Upon reviewing the merits of the Complaint, the

Magistrate Judge found that Plaintiffs fail to state a plausible claim and that because Plaintiffs
are challenging the underlying validity of their convictions, their claim is precluded by Heck v.
Humphrey, 512 U.S. 477 (1994). (Id. at 16.) In Heck, the United States Supreme Court found
that in order to recover damages for an allegedly unconstitutional conviction under § 1983, a
plaintiff must first prove the conviction has been reversed, invalidated, or otherwise called into
question. 512 U.S. at 486-87. Neither Plaintiff has successfully had his conviction set aside, and
therefore, the Magistrate Judge found, relief under § 1983 is not available for Plaintiffs. (ECF
No. 30 at 17.) In light of the recommendation to dismiss the Complaint, the Magistrate Judge

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also issued orders on August 22, 2014, denying Plaintiffs’ Motion for Subpoena (ECF No. 12)
and ordering the Clerk not to authorize service. (ECF Nos. 28, 29.)
On August 28, 2014, Plaintiffs filed a Motion to Amend the Complaint, seeking to update
the list of federal prisoners Plaintiffs purport to represent as “agents.” (ECF Nos. 33, 35.) On
the same day, Plaintiffs filed a Motion to Impose Summons Service Process Fees upon the
Defendants. (ECF No. 34.)
Plaintiffs timely filed their Objections to Magistrate’s Orders and Report and
Recommendation (ECF No. 40) on September 15, 2014, after the court granted an extension of
time to file (ECF No. 37). Plaintiff additionally filed a Motion for Leave to File Supplemental
Objection Brief (ECF No. 44)1 on January 28, 2015, which was granted on February 23, 2015
(ECF No. 47). Also on January 28, 2015, Plaintiffs filed a Second Motion for Issuance of
Subpoena. (ECF No. 45.)
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews 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 to which specific objections are made, and the court may accept, reject, or

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Plaintiffs attached to the Motion a 13-page brief and several attachments, which Plaintiffs
included “to enable the court’s immediate consideration in order to minimize any impact upon
the court’s schedule.” (ECF No. 44) These attachments serve as the requested supplement to
Plaintiffs’ Objections to Magistrate’s Orders and Report and Recommendation (ECF No. 40).
(see ECF Nos. 44-1, 44-2.)
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modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n the absence of a timely
filed objection, 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.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific written
objections to a Report will result in a waiver of the right to appeal from an Order from the court
based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

If the plaintiff fails to properly object because the objections lack the requisite

specificity, then de novo review by the court is not required.
As Plaintiffs are pro se litigants, the court is required to liberally construe their
arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those
arguments that, under the mandated liberal construction, it has reasonably found to state a claim.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
Plaintiffs first take issue with the Magistrate Judge denying Plaintiffs’ Motion for
Issuance of Subpoena (ECF No. 12), arguing that such a ruling was “dispositive,” and therefore
outside the Magistrate Judge’s authority.

(ECF No. 40 at 5-6.)

Plaintiffs insist that the

document which they seek to subpoena the Clerk of the House of Representatives to produce
would “absolutely settle any and all controversy in these cases” and therefore to deny the
issuance of a subpoena to produce the document is a denial of a substantive right. (Id. at 4, 6.)

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However, the issuance of a subpoena is a discovery issue regarding the production of evidence
that may or may not prove Plaintiffs’ claims. Regardless of the level of importance Plaintiffs put
upon this single piece of evidence, the decision to issue a subpoena is not a final determination
on this action as a whole, and is therefore not “dispositive.” Therefore, the Magistrate Judge
could properly make a ruling on the motion, and her decision to deny the motion in light of her
recommendation to dismiss the action was proper.
Plaintiffs next take issue with the Magistrate Judge’s recommendation to dismiss Plaintiff
Carroll from this action for failing to either pay the required filing fee or submit the proper forms
to proceed in forma pauperis, as ordered. (Id. at 7-8; see also ECF Nos. 13, 16.) Plaintiffs argue
that other United States Court of Appeals circuits have allowed Plaintiffs to join together in an
action and split the fee among them and that the Fourth Circuit has not definitively ruled on the
matter. (Id. at 8.) Plaintiffs further argue that the $400 fee is not a nominal one and imposes a
burden upon prisoners “in order to even have their liberty interests heard.” (Id. at 7.) Plaintiffs
urge, “a court has no ‘prudential’ license to decline to consider whether the statute under which a
defendant has been charged lacks constitutional application.” (ECF No. 16 at 4 (citing Bond v.
United States, 131 S. Ct. 2355, 2367 (2011) (Ginsburg, J., concurring)); see also ECF No. 44-1
at 12.) Plaintiffs’ arguments fall flat, however, when Plaintiffs have the option to proceed in
forma pauperis and pay only what they can afford. Their arguments that the fees obstruct
Plaintiffs’ access to the court are further harmed by Plaintiff Carroll’s attempt to hold his
completed in forma pauperis paperwork hostage, insisting the paperwork for Plaintiff Carroll
and the other federal prisoners listed in the Complaint “would be immediately forthcoming ‘upon
the decision of this court granting the Relief Sought.’” (ECF No. 44-1 at 9.) Although courts
have an obligation to consider constitutional challenges to statutes, this does not mean a court

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must do so regardless of a plaintiff’s compliance with administrative and procedural
requirements.

If the courts had an unqualified responsibility to examine all constitutional

challenges even without payment of a filing fee or with payment only upon a satisfactory ruling,
as Plaintiffs would urge this court to do, no plaintiff would have the incentive to pay the required
administrative fees. The courts would be flooded with cases but would lack the resources to hear
them. “Litigation is not a free good, and its costs are not limited to those who initiate it.”
Lumbert v. Ill. Dep’t of Corr., 827 F.2d 257, 259 (7th Cir. 1987). Although Plaintiffs, as
prisoners, have limited income sources, they, like litigants outside of prison, must decide
whether the cost of litigation is worth the loss of funds for other goods and services. As the
Fourth Circuit noted,
Requiring prisoners to make economic decisions about filing lawsuits does
not deny access to the courts; it merely places the indigent prisoner in a
position similar to that faced by those whose basic costs of living are not paid
by the state. Those living outside of prisons cannot file a lawsuit every time
they suffer a real or imagined slight. Instead, they must weigh the
importance of redress before resorting to the legal system. If a prisoner
determines that his funds are better spent on other items rather than filing a
civil rights suit, “he has demonstrated an implied evaluation of that suit” that
the courts should be entitled to honor.
Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997) (citation omitted).
While Plaintiff Schumaker has demonstrated it is worth it to him to forego other goods
and services to pursue this litigation by paying the full filing fee, Plaintiff Carroll has not, nor
has he demonstrated that even paying a nominal fee by proceeding in forma pauperis is worth
the cost unless the court returns a favorable decision. Plaintiff Carroll has not been obstructed
from accessing the court, he simply refuses to comply with its requirements. As such, the court
accepts the Magistrate Judge’s recommendation and dismisses Plaintiff Carroll’s claims.

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Plaintiffs offer no argument to counter the Magistrate Judge’s finding that a pro se
litigant cannot represent another pro se litigant, and therefore the additional 75 federal prisoners
cannot be parties to this suit. Instead, Plaintiff Schumaker attempts to label his role in relation to
the other prisoners as that of a “limited (special) appearance” and that he would be pleading only
his case, but that the other prisoners agree to be subject to any decisions regarding this case.
(ECF No. 40 at 8.) No matter how Plaintiffs attempt to label this relationship, they can offer no
case law or statute to show how this manner of representation is proper, and thus the court
accepts the Magistrate Judge’s recommendation and will not allow the joinder of these other
parties to this action.
Plaintiff Schumaker then argues that “[p]rocedurally speaking, the Magistrate eludes to
absolutely no other justification for denial of this case being heard with simply Schumaker by
himself being permitted to proceed as a single Plaintiff, other than her Review of the
Complaint.” (Id. at 9.) To the contrary, the Magistrate Judge cites the United States Supreme
Court decision of Heck v. Humphrey to note that Plaintiffs’ claims in this § 1983 action are
precluded. (ECF No. 30 at 15-17.) In fact, even if this court were to allow the additional
prisoners to join this action and to allow all parties to split one filing fee among them, this action
would still be subject to dismissal under Heck. In Heck, the Supreme Court held,
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so invalidated is not
cognizable under § 1983.

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512 U.S. at 486-87. Plaintiffs’ claims rest on the assertion that 18 U.S.C. § 3231 is invalid and
therefore the courts did not have jurisdiction over Plaintiffs, rendering their convictions void.
The very crux of Plaintiffs’ claim calls into question the validity of their convictions, and
therefore, absent a showing that their convictions have been overturned, they have no cognizable
claims under § 1983. As the Magistrate Judge noted, and Plaintiffs do not dispute, Plaintiff
Carroll’s direct appeal was voluntarily dismissed by the Fourth Circuit and it does not appear he
has filed a petition for writ of habeas corpus and Plaintiff Schumaker’s 28 U.S.C. § 2255 habeas
petition is currently pending before the Northern District of Georgia. (ECF No. 30 at 2, n.2.) As
such, Plaintiffs cannot demonstrate that their convictions have been overturned, and thus they do
not have cognizable claims under § 1983.
Plaintiffs cite to Johnson v. Freeburn, 29 F. Supp. 2d 764 (E.D. Mich. 1998), asserting
that Plaintiffs specifically invoke § 1983 and 28 U.S.C. § 1346(a), seeking only nominal
damages, and this differentiates their claims from those sought in Heck. Plaintiffs’ reliance on
Johnson is misplaced for two reasons. First, the plaintiff in Johnson was no longer in custody at
the time he filed his suit, and thus Heck did not apply because relief under a habeas action was
no longer available to him, and thus § 1983 was the plaintiff’s only method of redress. 29 F.
Supp. 2d at 773-74. Second, regardless of which sections Plaintiffs invoke and the amount of
damages they seek, ultimately they challenge the validity of their convictions and Heck precludes
them from seeking a remedy under § 1983 until they can show their convictions have been
overturned. Unless and until they can demonstrate as such, Plaintiffs have no cognizable claim
under § 1983.

Therefore, the court accepts the Magistrate Judge’s recommendation and

dismisses this action.

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Plaintiffs offer several additional objections regarding the Magistrate Judge’s
categorization of Plaintiffs’ claims and regarding the merits of the claims. However, regardless
of how Plaintiffs choose to categorize or label their claims, the claims are precluded by Heck
from being brought under § 1983, and thus the court declines to address any discussion of the
merits of Plaintiffs’ claims.
As the foregoing discussion has demonstrated, Plaintiffs cannot demonstrate a likelihood
of success in this § 1983 action. As such, they cannot make a showing that they are entitled to a
preliminary injunction, and the court accepts the recommendation of the Magistrate Judge and
denies Plaintiffs’ Motion for Preliminary Injunction (ECF No. 8). See Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008) (To obtain a preliminary injunction, a plaintiff must
establish all four of the following factors: (1) likelihood of success on the merits, (2) a likelihood
of suffering irreparable harm in the absence of relief, (3) the balance of equity tips in favor of
granting the injunction, and (4) the injunction is in the public interest.).
Additionally, Plaintiffs’ Motion to Amend/Correct Complaint (ECF No. 33), is also
denied. A motion to amend should be denied only where it would be prejudicial, there has been
bad faith, or the amendment would be futile. Nourison Rug Corp. v. Parvizian, 535 F.3d 295,
298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)).
Plaintiffs propose no changes to the Complaint that would make their claims cognizable under §
1983, but seek only to amend the list of federal prisoners they wish to join to this case. As the
court has found these additional prisoners cannot be joined to this action, and further that this
action is not cognizable under § 1983, this proposed amendment would be futile, and is therefore
denied.

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Further, Plaintiffs’ Motion to Impose Summons Service Process Fees upon the
Defendants (ECF No. 34) and Second Motion for issuance of Subpoena (ECF No. 45) are also
denied. As this action has been dismissed, the issuance of service, and therefore the imposition
of service fees on any party, is unnecessary. Additionally, as the issuance of the subpoena is for
discovery purposes, this case’s dismissal renders the request moot. Therefore, these motions,
too, are denied.
III. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the
Magistrate Judge and the record in this case, the court ACCEPTS the Report of the Magistrate
Judge (ECF No. 30). It is therefore ordered that this action (ECF No. 1) is DISMISSED with
prejudice. Additionally, Plaintiffs’ Motion for Preliminary Injunction (ECF No. 8), Motion to
Amend/Correct Complaint (ECF No. 33), Motion to Impose Summons Service Process Fees
upon the Defendants (ECF No. 34), and Second Motion for issuance of Subpoena (ECF No. 45)
are DENIED.
IT IS SO ORDERED.

United States District Judge
February 27, 2015
Columbia, South Carolina

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