Peoples v. Rogers et al

Filing 12

REPORT AND RECOMMENDATIONS recommending that the District Court dismiss 1 Complaint without prejudice and without issuance and service of process; Objections to R&R due by 1/29/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 1/12/10. (ncha, )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Robert Peoples, # 270600,

Plaintiff, vs. Capt. Guerry Rogers; Lt. Willie Davis; Sgt. Dorothy Simmons; Sgt. F. Ford; Nurse Morgens E. Henningsen; Nurse Sara Murdock; Ofc. Alejandro Lucas; Ofc. Ryan Stubbs; Assoc. Warden Robbin Chavis; Ofc. Jane Doe; Ofc. NFN Tillman; Ofc. NFN Stenton; Ofc. NFN Blue Jr.; Ofc. NFN Smith; all Ind. capacities,

Defendants. _________________________________________

) C/A No. 8:10-0024-CMC-BHH ) ) ) ) ) Report and Recommendation ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Background of this Case
The plaintiff is an inmate at the Lieber Correctional Institution. The South Carolina Department of Corrections website indicates that the plaintiff is serving a ten-year sentence for armed robbery. The plaintiff's conviction was entered in the Court of General Sessions for York County in 2000. 1

The above-captioned case arises out of an incident of excessive force on March 7, 2005. On that date, the plaintiff was allegedly assaulted by Captain Rogers after the plaintiff called him a "fat fucker." The plaintiff also alleges that he was denied medical care for the injuries sustained by the plaintiff during the attack. The plaintiff, on page 1 of the complaint, discloses that he brought, on November 28, 2007, suit against nine of the individual defendants and the South Carolina Department of Corrections in the Court of Common Pleas for Richland County (Case No. 2007-CP-40-7942). The plaintiff indicates that the Court of Common Pleas for Richland County granted summary judgment to the defendants on November 12, 2009. The

plaintiff's answers on page 2 of the complaint show that the plaintiff filed a grievance (No, ECI-0715-05) on March 10, 2005, and received his final decision on the grievance on October 4, 2007. Hence, it is clear that the plaintiff originally brought suit in the Court of Common Pleas for Richland County fifty-five (55) days after his grievance was decided.

D is c u s s i o n
Under established local procedure in this judicial district, a careful review1 has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and the Prison Litigation Reform Act. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (DSC), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. 2

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Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979) (recognizing the district court's authority to conduct an initial screening of any pro se filing);2 Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The plaintiff is a pro se litigant, and thus his pleadings are accorded liberal construction. See Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam); Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7 (1980)(per curiam); and Cruz v. Beto, 405 U.S. 319 (1972). W hen a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). Even so, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is plausibly liable, not merely possibly liable. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), which is cited in Silva v. Spencer, No. 08-cv-1686-H (LSP), 2009 U.S. Dist. LEXIS 61467, 2009 WL 2160632 (S.D. Cal., July 17, 2009). Even under this less stringent standard, the § 1983 complaint is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990).

Boyce has been held by some authorities to have been abrogated in part, on other grounds, by Neitzke v. Williams, 490 U.S. 319 (1989) (insofar as Neitzke establishes that a complaint that fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition merit sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) [formerly 28 U.S.C. § 1915(d)], as "frivolous"). 3

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Since the incident that gave rise to this case took place on March 7, 2005, the plaintiff's civil rights claims in this case are barred by the statute of limitations. In civil rights cases filed in the District of South Carolina, this court must apply South Carolina's general personal injury statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 265-80 (1985) (in § 1983 actions, federal courts should apply a state's general statute of limitations for personal injuries). South Carolina's applicable personal injury statute of limitations is codified at S.C. Code Ann. § 15-3-530, which establishes a three-year limitations period for causes of action arising on or after April 5, 1988. Under Rule 8(c) of the Federal Rules of Civil Procedure, a statute of limitations defense is an affirmative defense, which is subject to waiver if not timely raised in a responsive pleading. See, e.g., United States v. Ward, 618 F. Supp. 884, 901 (E.D.N.C. 1985); and American National Bank v. Federal Deposit Insurance Corporation, 710 F.2d 1528, 1537 (11th Cir. 1983). Even so, the holding in Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983), authorizes a district court to anticipate clearly apparent affirmative defenses available to the defendants in determining under § 1915 whether process should be issued against the defendants. See also Rogers v. Isom, 709 F. Supp. 115, 117 (E.D. Va. 1989) ("A determination of frivolousness on the basis of affirmative defenses is appropriate even though no responsive pleadings have been filed."), citing Todd v. Baskerville, and Duncan v. West Virginia, 597 F. Supp. 1195, 1196 (S.D.W.Va. 1984) ("Although some of the matters discussed constitute defenses, where the complaint on its face raises obvious and complete affirmative defenses, the Court may consider these defenses in ruling under 28 U.S.C. § 1915(d) finding a complaint frivolous.")(citation omitted).

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As earlier stated, the plaintiff's suit against nine of the defendants in this case in the Court of Common Pleas for Richland County (Case No. 2007-CP-40-7942) was decided by summary judgment in favor of the defendants. See Complaint, at page 1.3 Hence, the plaintiff's claims in the above-captioned case are also barred by the doctrine of res judicata. Res judicata bars litigation of all claims or defenses that were available to the parties in the previous litigation, regardless of whether they were asserted or determined in the prior proceeding. See Brown v. Felsen, 442 U.S. 127, 131 (1979); and Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991). See also Clark v. Haas Group, Inc., 953 F.2d 1235, 1239 (10th Cir. 1992); Langston v. Insurance Company of North America, 827 F.2d 1044, 1048-49 (5th Cir. 1987) (res judicata barred suit under ADEA where previous suit was for wrongful discharge); and Polsby v. Thompson, 201 F. Supp. 2d 45 (D.D.C. 2002), where the district court explained the criteria for res judicata: Res judicata bars a claim when there has been a final judgment on the merits in a prior suit involving the same parties or their privies and the same cause of action. See I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946-47 (D.C.Cir.1983). The four factors that must exist for The Public Index for the Clerk of Court for Richland County (accessible via a link on the South Carolina Judicial Department website) indicates that the plaintiff appealed the grant of summary judgment in Case No. 2007-CP-40-7942). The plaintiff's appeal was not successful. On January 7, 2010, the Clerk of Court for Richland County docketed the Order of Dismissal and Remittitur from the South Carolina Court of Appeals. This federal court may take judicial notice of factual information located in postings on governmental websites in the United States. See In Re Katrina Canal Breaches Consolidated Litigation, 533 F. Supp. 2d 615, 631-33 & nn. 14-15 (E.D. La. 2008) (collecting cases indicating that federal courts may take judicial notice of governmental websites, including court records); and Williams v. Long, 585 F. Supp. 2d 679, 686-88 & n. 4 (D. Md. 2008) (collecting cases indicating that postings on government websites are inherently authentic or self-authenticating). 5
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res judicata to apply are (1) an identity of parties in both suits; (2) a judgment rendered by a court of competent jurisdiction; (3) a final judgment on the merits; and (4) the same cause of action in both suits. See Brannock Assocs., Inc. v. Capitol 801 Corp., 807 F.Supp. 127, 134 (D.D.C.1992) (citing U.S. Industries, Inc. v. Blake Constr. Co., 765 F.2d 195, 205 n. 21 (D.C.Cir.1985)). The purpose of res judicata is to "conserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and to prevent serial forum-shopping and piecemeal litigation." Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir.1981). Determining whether a particular ruling fulfills each factor necessary for res judicata to apply requires a careful assessment of what each factor demands. First, a nonparty may be in privity with a party to the prior action if the nonparty's interests are "adequately represented by a party to the original action." See American Forest Res. Council v. Shea, 172 F.Supp.2d 24, 31 (D.D.C.2001) (quoting Tyus v. Schoemehl, 93 F.3d 449, 454 (8th Cir.1996)). Also, the doctrine of res judicata applies to all the parties' rights regarding matters that could have been litigated as well as those matters that were actually litigated. See I.A.M. Nat'l Pension Fund, 723 F.2d at 947. Finally, for res judicata to apply, the court must have made a final ruling based on the merits of the case. See U.S. Indus., 765 F.2d at 205-06. A traditional judgment on the merits of a case is one that disposes of the underlying cause of action. See Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195 (1877). More generally, a judgment is considered on the merits when a court renders a decision after considering the legal claim. See Harper Plastics, Inc. v. Amoco Chems. Corp., 657 F.2d 939, 943 (7th Cir.1981); 18 Moore's Federal Practice § 131 .30[3][a] (3d ed.2000). In other words, a ruling is a judgment on the merits if it "is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction, or form." Id. (quoting Fairmont Aluminum Co. v. Comm'r, 222 F.2d 622, 625 (4th Cir.1955)). Polsby v. Thompson, 201 F.Supp.2d at 48. See also Shoup v. Bell & Howell, 872 F.2d 1178, 1182 (4th Cir. 1989) ("'[J]ustice is better served by attributing finality to judgments . . . than by second efforts at improved results.'"). Since the plaintiff's claims

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have already been adjudicated by the Court of Common Pleas for Richland County in case No. 2007-CP-7942), the plaintiff's claims are barred by the doctrine of res judicata even though he has added three additional defendants (defendants Murdock, Lucas, and Chavis).

Recom mendation
Accordingly, it is recommended that the District Court dismiss the above-captioned case without prejudice and without issuance and service of process. See Denton v. Hernandez; Neitzke v. Williams; Brown v. Briscoe, 998 F.2d 201, 202-204 (4th Cir. 1993); 28 U.S.C. § 1915(e)(2)(B) [essentially a redesignation of "old" § 1915(d)]; and 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]. The plaintiff's attention is directed to the Notice on the next page.

s/Bruce Howe Hendricks United States Magistrate Judge January 12, 2010 Greenville, South Carolina

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Notice of Right to File Objections to Report and Recommendation The plaintiff is advised that he may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[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 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk of Court United States District Court Post Office 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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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