Rogers v. Valentino et al

Filing 10

REPORT AND RECOMMENDATIONS recommending that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process. It is further recommended that this frivolous case be considered a fifth strike against Plaintiff. 28 U.S.C. § 1915(g). Objections to R&R due by 1/26/2009. Signed by Magistrate Judge Bruce Howe Hendricks on 1/6/09. (kmca)

U N IT E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA H a yw a rd Leon Rogers, # 278510, a k a Hayward L. Rogers P la in tiff, vs. M a r ta M. Valentino, W e s t Columbia Police D e p a rtm e n t; Jason Amodio, W e s t Columbia Police Department; W e n d y Frazier, W e s t Columbia Police Department; D o n a ld V. Myers, Eleventh Circuit Solicitors Office et a l. Defendants. _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ ) C/A No. 8:08-4090-MBS-BHH ) ) ) ) Report and Recommendation ) ) ) ) ) ) ) ) )

T h is is a civil action filed pro se by a state prison inmate. 1 Plaintiff asserts, as he has in at le a s t fifteen previous unsuccessful cases filed in this Court, numerous constitutional violations in c o n n e ctio n with his 2001 Lexington County convictions and life sentences. A recommendation that a pre-filing review injunction with respect to habeas petitions relative to these convictions is currently p e n d in g review before the district judge. See Rogers v. Rushton, C/A No. 8:08-2883-MBS-BHH. P la in tiff acknowledges his struck-out status, see 28 U.S.C. § 1915(g), but claims that this case falls w ith in an exception to the three-strikes rule. He asserts that he is in imminent danger of physical h a rm resulting from his allegedly illegal confinement because he is allegedly housed with a "racist" a n d given "inadequate food" while in the custody of the South Carolina Department of Corrections (S C D C ) . Although it is questionable whether or not such allegations are sufficient to satisfy the

Pursuant to 28 U.S.C. §636(b)(1), and D.S.C. Civ. R. 73.02(B)(2)(e), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. § § 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).

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im m in e n t danger exception to the three-strikes rule, assuming without deciding that they are due to th e liberal construction rules for pro se filings, this case is still subject to summary dismissal. Under established local procedure in this judicial district, a careful review has been made of P la in tiff's pro se Complaint filed in this case. This review has been conducted pursuant to the p ro c e d u ra l provisions of 28 U.S.C. § § 1915, 1915A, and the Prison Litigation Reform Act of 1996, a n d in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. W illia m s , 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, M d . House of Corr., 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1 9 8 3 ); 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, G o r d o n v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with lib e ra lly construing a complaint filed by a pro se litigant to allow the development of a potentially m e rito rio u s case. Erickson v. Pardus, _ U.S. _, 127 S. Ct. 2197 (2007); Hughes v. Rowe, 449 U.S. 5 , 9-10 (1980); Cruz v. Beto, 405 U.S. 319 (1972). W h e n a federal court is evaluating a pro se c o m p la in t, the plaintiff's allegations are assumed to be true. Fine v. City of N. Y., 529 F.2d 70, 74 ( 2 d Cir. 1975). Nevertheless, the requirement of liberal construction does not mean that this Court c a n ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990). Even under th is less stringent standard, however, the Complaint filed in this case is subject to summary dismissal u n d e r the provisions of 28 U.S.C. § 1915(e)(2)(B). It is clear that this prisoner is struck out pursuant to 28 U.S.C. § 1915(g) [the Prison Litigation

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R e fo rm Act].2 It is judicially noticed that this Plaintiff has filed more than three (3) prior frivolous c a s e s in this Court since 1997, and that such previous frivolous filings have been duly noted in re p o r ts and recommendations and/or orders of this Court in the following cases: Rogers v. Eleventh C irc u it Solicitor's Office, C/A No. 9:00-783; Rogers v. Eleventh Circuit Solicitor's Office, C/A No. 9:001 3 6 5 ; Rogers v. McMaster, C/A No. 8:04-690; Rogers v. Hendricks, C/A No. 6:04-22428, and Rogers v . West Columbia, C/A No. 8:06-3058. The "three-strikes rule" is a Congressional enactment that a p p lie s nationwide. It is not a judicially-created rule. By enacting the statute in which the rule was e s ta b lis h e d , Congress determined that, except under very limited circumstances, prisoners, such a s Plaintiff, who have filed prior frivolous litigation in a federal court, shall be barred from pursuing c e rta in types of federal civil rights litigation. See 28 U.S.C. § 1915(g); Green v. Nottingham, 90 F.3d 4 1 5 , 417-20 (10th Cir. 1996) (three strikes provision of 28 U.S.C. § 1915(g) can be applied r e t ro a c tiv e ly) ; cf. In re Sargent, 136 F.3d 349 (4th Cir. 1998). The limited exception to this bar is where "the prisoner is under imminent danger of serious p h ys ic a l injury." Obviously being aware of the potential three-strikes bar to his claims, as stated e a rlie r, Plaintiff includes allegations in his Complaint to the effect that he is being housed with a "ra c is t" and is being denied adequate food while in SCDC custody serving the sentences for the c o n v ic tio n s of which he complains. Assuming, without deciding, that such allegations are facially

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28 U.S.C. § 1915(g) provides: (g) in no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 3

s u ffic ie n t to set forth a claim that he is "under imminent danger of serious physical injury" as required u n d e r 28 U.S.C. § 1915(g) under the required liberal construction of pro se pleadings, it is n e ve rth e le s s clear that, regardless of Plaintiff's struck-out status, the remaining allegations in the C o m p la in t fail to state a viable federal cause of action and this case is subject to summary dismissal a s frivolous. 28 U.S.C. § 1915A(b)(1). As he has been previously informed in several of his previous attempts to assert constitutional c la im s regarding his criminal convictions and sentences, see C/A Nos. 9:00-783; 8:04-690; 8:063 0 5 8 , Plaintiff's Complaint is subject to summary dismissal based on the United States Supreme C o u rt's decision in Heck v. Humphrey, 512 U.S. 477 (1997). W ith respect to actions filed pursuant to 42 U.S.C. § 1983 such as the present one alleging constitutional violations and/or other im p ro p rie tie s in connection with state criminal charges,3 the Court stated: W e hold that, in order to recover damages for allegedly u n c o n s titu tio n a l conviction or imprisonment, or for other harm whose u n la w fu ln e s s would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been re v e rs e d on direct appeal, expunged by executive order, declared in v a lid by a state tribunal authorized to make such a determination, or c a lle d into question by a federal court's issuance of a writ of habeas c o rp u s, 28 U.S.C. § 2254. A claim for damages bearing that re la tio n sh ip to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks d a m a g e s in a § 1983 suit, the district court must consider whether a ju d g m e n t in favor of the plaintiff would necessarily imply the invalidity of h is conviction or sentence; if it would, the complaint must be dismissed u n le s s the plaintiff can demonstrate that the conviction or sentence has a lre a d y been invalidated.

Section 1983 is the procedural mechanism through which Congress provided a private civil cause of action based on allegations of federal constitutional violations by persons acting under color of state law. Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973). The purpose of section 1983 is to deter state actors from using badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. McKnight v. Rees, 88 F.3d 417(6th Cir. 1996)(emphasis added). Plaintiff's claims of unconstitutional confinement fall within the coverage of § 1983. 4

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H e c k , 512 U.S. at 486-87. B y the above statements, the United States Supreme Court ruled that until a criminal c o n vic tio n is set aside by way of appeal, PCR, habeas, or otherwise, any civil rights action based on th e conviction and related matters will be barred. Heck does not apply in the context of claims of u n co n stitu tio n a lity in on-going criminal cases, Wallace v. Kato, 549 U.S. 384 (2007). The limitations p e rio d for such a post-trial civil rights action will not begin to run until the cause of action accrues, i.e ., until the conviction is set aside; therefore, a potential § 1983 plaintiff does not have to worry a b o u t the running of the statute of limitations while he or she is taking appropriate steps to have a c o n v ictio n overturned. See Wallace v. Kato, 549 U.S. 384, 127 S. Ct. at 1097-98; Benson v. N. J. S ta te Parole Bd., 947 F. Supp. 827, 830 (D. N.J. 1996)(following Heck v. Humphrey and applying it to probation and parole revocations "[b]ecause a prisoner's § 1983 cause of action will not have a r is e n , there need be no concern that it might be barred by the relevant statute of limitations."); S n y d e r v. City of Alexandria, 870 F. Supp. 672, 685-88 (E.D. Va. 1994). However, since this case in v o lv e s an already completed criminal trial and complaints about how it was conducted, Wallace is inapplicable and Heck controls. Since Plaintiff has not been successful in having his Lexington County convictions set aside b y way of appeal, PCR, habeas corpus, or otherwise, and because Plaintiff's allegations, if true, w o u ld necessarily invalidate his conviction, he cannot sue any of the Defendants because of their in v o lv e m e n t in his prosecution and ultimate conviction. See Johnson v. Freeburn, 29 Fed.Supp.2d 7 6 4 , 772 (S.D. Mich. 1998)(under Heck v. Humphrey, nature of relief sought is not critical question; ra th e r, it is the grounds for relief); see also Clemente v. Allen, 120 F.3d 703 (7th Cir. 1997)(injunctive re lie f sought). As a result, this case is subject to summary dismissal as to all Defendants without is s u a n c e of service of process. Furthermore, as Plaintiff was recently advised in a Report and

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R e c o m m e n d a tio n filed in one of his many duplicative habeas corpus cases, C/A No. 8:08-2883, his "c o n tin u in g filing of frivolous or otherwise improper lawsuits" such as the one under consideration in this case could result in the imposition of "monetary sanctions against him. . . ." R e c o m m e n d a t io n Accordingly, it is recommended that the District Court dismiss the Complaint in this case w ith o u t 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 (4th Cir. 1993); Boyce v. A liza d u h ; Todd v. Baskerville, 712 F.2d at 74; see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (a s soon as possible after docketing, district courts should review prisoner cases to determine w h e th e r they are subject to summary dismissal). It is further recommended that this frivolous case be considered a fifth strike against Plaintiff. 2 8 U.S.C. § 1915(g). Plaintiff's attention is directed to the important notice on the next page.

s/Bruce Howe Hendricks U n ite d States Magistrate Judge J a n u a ry 6, 2009 G r e e n v ille , South Carolina

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Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 (4th Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court P.O. Box 10768 Greenville, South Carolina 29603 Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); U. S. v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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