Weber v. Aiken-Partain et al

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. The complaint is dismissed without prejudice and without issuance of service of process. Signed by Honorable G Ross Anderson, Jr on 2/15/2012. (kric, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Mauricio E. Weber,
aka Esteban M. Weber

)
)
)
Plaintiff,
)
)
v.
)
)
Melissa Aiken-Partain; Mike Aiken;
)
Michael Roberson; Keith Bagwell;
)
Trevor Simmons; Joey Chapman; John )
Zamberlin; Mike Baskins; Chrissy J.
)
Adams; Kristin Reeves; Robert A.
)
Gamble; Joy Chavis; Richard A.
)
Shirley; Daniel F. Sherouse; John Doe; )
John Doe; Jeffrey Musick, Richard L.
)
Frierson; Doris A. Taylor.
)
)
Defendants.
)
_____________________________________ )

C/A No.: 8:11-cv-02423-GRA
ORDER
(Written Opinion)

This matter comes before the Court for review of Magistrate Jacquelyn D.
Austin’s Report and Recommendation made in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., and filed on September 26,
2011. Plaintiff filed this action on September 9, 2011, pursuant to 42 U.S.C. §
1983. Under established local procedure in this judicial district, Magistrate Judge
Austin made a careful review 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. Magistrate Judge Austin recommends that this Court dismiss

Page 1 of 11

Plaintiff’s Complaint without prejudice and without issuance of service of process.
This Court adopts the magistrate’s recommendation in its entirety.
STANDARD OF REVIEW
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys.

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

This Court is charged with liberally construing a pleading filed by a pro se litigant to
allow for the development of a potentially meritorious claim. Boag v. MacDougall,
454 U.S. 364, 365 (1982).
The magistrate makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with this Court.

See Mathews 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 and Recommendation to which specific objection is
made, and this Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate."

28 U.S.C. § 636(b)(1).

This Court may also "receive further evidence or recommit the matter to the
magistrate with instructions."

Id.

In the absence of specific objections to the

Report and Recommendation, this Court is not required to give any explanation for
adopting the recommendation.

Page 2 of 11

OBJECTIONS
In order for objections to be considered by a United States District Judge,
the objections must be timely filed and specifically identify the portions of the
Report and Recommendation to which the party objects and the basis for the
objections. Fed. R. Civ. P. 72(b); see United States v. Schronce, 727 F.2d 91, 94
n.4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir.
1985). “Courts have . . . held de novo review to be unnecessary in . . . situations
when a party makes general and conclusory objections that do not direct the court
to a specific error in the magistrate’s proposed findings and recommendation.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Furthermore, in the absence
of specific objections to the Report and Recommendation, this Court is not required
to give any explanation for adopting the recommendation. Camby v. Davis, 718
F.2d 198 (4th Cir. 1983). Plaintiff filed objections on October 7, 2011.
DISCUSSION
Plaintiff is a pretrial detainee, and is being held at Anderson County
Detention Center on murder charges.

Plaintiff filed a seventeen page document

with this Court with “objections” that mostly reference the magistrate’s Report and
Recommendation.

Most of the document rehashes Plaintiff’s initial argument

before the magistrate or restates alleged facts1 set forth in Plaintiff’s fifty-five page

1

Among other things, Defendant objects to the following: (1) the Report and Recommendation
misstates factual information in the “Background and Discussion” section; (2) Defendant AikenPage 3 of 11

complaint, see ECF No. 1. These issues were correctly considered by the
magistrate and this Court will not address the issues a second time. To the extent
Plaintiff raises cognizable and specific objections to the magistrate’s Report and
Recommendation, those objections are addressed below.

Applying the requisite

liberal standard to the plaintiff’s pro se objections, this Court find that the plaintiff
filed four specific objections. The plaintiff objected to the following:
1. Removal from State to Federal Court
Plaintiff believes that the circumstances of his case are “extraordinary,” and
that he cannot receive a fair and impartial trial at the state level. The Supreme
Court, in Younger v. Harris, 401 U.S. 37 (1971), held that, absent extraordinary
circumstances, federal courts are not authorized to interfere with a state's pending
criminal proceedings.

Id. at 44; see also 28 U.S.C. § 2283.

Additionally, in

Cinema Blue of Charlotte, Inc. v. Gilchrist, the Fourth Circuit ruled that federal
district courts should abstain from constitutional challenges to state judicial
proceedings, no matter how meritorious, if the federal claims have been or could be
presented in an ongoing state judicial proceeding. 887 F.2d 49, 52 (4th Cir. 1989).
Further, in Bonner v. Circuit Ct. of St. Louis, the Eighth Circuit pointed out that
federal constitutional claims are cognizable in both state courts and in federal
courts: “Congress and the federal courts have consistently recognized that federal

Partain was not at the scene of the crime and did not witness Plaintiff’s confession although she
says she was; and (3) the statement given by Plaintiff’s neighbor was inaccurate. These objections
Page 4 of 11

courts should permit state courts to try state cases, and that, where constitutional
issues arise, state court judges are fully competent to handle them subject to
Supreme Court review.” 526 F.2d 1331, 1336 (8th Cir.1975); see also D.C. Court
of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (federal courts cannot review
state court proceedings in an appellate sense); Gurley v. Superior Court of
Mecklenburg County, 411 F.2d 586, 587–88 (4th Cir.1969) (federal courts may
not issue writs of mandamus against state courts). As indicated in the cases cited
above, Plaintiff is not foreclosed from raising claims of unconstitutionality in
connection with state proceedings before Plaintiff has been tried. Also, Plaintiff
argues that his situation warrants extraordinary measures because there is a
“conspiracy” against him, precluding him from receiving a fair and impartial trial at
the state level. This Court finds no reason to believe that the Defendants in this
case were knowingly and intentionally conspiring against the Plaintiff.
absent

the

alleged

conspiracy,

this

case

does

not

involve

Thus,

extraordinary

circumstances. Further, to grant the injunctive relief Plaintiff seeks, removal from
state to federal court, this Court would be required to enjoin the state prosecution,
and, as stated above, this is not something we can do under Younger, Cinema
Blue, and Bonner.

are merely a restatement of facts alleged in Plaintiff’s complaint.
Page 5 of 11

2. Ineffective Assistance of Counsel
Plaintiff alleges that his counsel has committed multiple errors that amount to
ineffective assistance of counsel.

Plaintiff filed this lawsuit under 42 U.S.C. §

1983, which states:
Every person who under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, Suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer for an
act or omission taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District
of Columbia shall be considered to be a statute of the District of
Columbia.
Id.
The law is well settled that a defense attorney, whether privately retained or
court-appointed, is not amenable to suit under § 1983 because defense counsel is
not acting under color of law when performing the traditional functions of counsel.
See Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)(noting the widely held
understanding that “a lawyer representing a client is not, by virtue of being an
officer of the court, a state actor ‘under color of state law’ within the meaning of §
1983”); Hall v. Quillen, 631 F.2d 1154, 1155–56 (4th Cir. 1980)(affirming
dismissal of § 1983 action against court-appointed attorney as lacking “state
action”).

However, an attorney who conspires with state officials to violate
Page 6 of 11

constitutional rights acts under color of state law. See Tower v. Glover, 467 U.S.
914, 920 (1984). To plead and later prove such a conspiracy, a plaintiff must
show an agreement or a meeting of the minds to violate constitutional rights; mere
cooperation in an official investigation is insufficient to show conspiracy. See John
Hancock Mut. Life Ins. Co. v. Anderson, No. 90–1749, 1991 WL 99073, at *3
(4th Cir. July 15, 1991)(citing Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983)).
Here, Plaintiff claims that his attorney “continue[] to conspire with the prosecution
to undermine [Plaintiff’s] criminal defense.” Objections 5–6, ECF No 16. He also
makes the following allegations: (1) his attorney was [terminated] for allegedly
accepting bribes from the victim[‘s] family in exchange for misrepresentation of
their clients, etc;” (2) “The Public Defenders Office is the subject of an on-going
investigation;” (3) his attorney “violated the attorney-client privilege by divulging
information to the prosecution, that amounted to admissions of guilt” (4) his
attorney did not compel crime scene photos; (5) his attorney failed to ensure that
mental health evaluators were given a copy of his mental health and school records
at the time he was evaluated; and (6) his attorney “violated the attorney-client
privilege by placing unsealed legal documents in the possession of ACRC personal.”
Id. at 5–8. None of these allegations convince the Court that Plaintiff’s attorneys
were involved in a conspiracy against Plaintiff.
meritless.

Page 7 of 11

Therefore, Plaintiff’s claims are

3. Heck, Nelson, Holtz, and Hudson
In Plaintiff’s Objections, he states that he is not seeking damages, only
injunctive relief in the form of removal from state court, and as such, the holdings
of Heck v. Humphrey, 512 U.S. 477 (1994), Nelson v. Murphy, 44 F.3d 497 (7th
Cir. 1995), Smith v. Holtz, 87 F.3d 108 (3d Cir. 1996), and Hudson v. Chicago
Police Department, 860 F. Supp. 521 (N.D. Ill. 1994), do not apply.

However,

Plaintiff asserts in his Complaint that he is entitled to “[c]ompensatory damages
against Defendants John Doe and John Doe for the physical, emotional and
psychological pain sustained as a result [of the] electronic control device,”
“[c]ompsenatory damages against Defendants Gamble and Davis for the emotional
and psychological pain sustained, as a result of violating attorney-client privilege,”
“[c]ompensatory damages against Defendant Gamble for the emotion and
psychological pain sustained, as a result of his failure to obtain Plaintiff[‘s]
complete mental health history and school records prior to the competency to
stand trial evaluation,” and “punitive damages in the amount of $100,000 . . .
against Defendants Gamble, Davis, John Doe and John Doe, jointly and severally.”
See Complaint, ECF No. 1. It appears that Plaintiff is asking the Court to award
damages as well as injunctive relief. The magistrate judge correctly concluded that
the above-mentioned cases apply to this case because it is a § 1983 case that
requests monetary and/or injunctive relief.

Therefore, this objection is without

merit.
Page 8 of 11

4. Electronic Control Device
Plaintiff’s allegation that he was harmed by an “electronic control device” is
without merit.

Plaintiff is currently a pretrial detainee charged with murder. As a

pretrial detainee, Plaintiff is protected by the Due Process Clause of the Fourteenth
Amendment.

See Bell v. Wolfish, 441 U.S. 520, 535 (1979).

“[T]he pretrial

detainee, who has yet to be adjudicated guilty of any crime, may not be subjected
to any form of ‘punishment.’”

Martin v. Gentile, 849 F.2d 863, 870 (4th

Cir.1988) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
Although a state may not subject pretrial detainees to any restriction or condition
that is intended to punish, see Slade v. Hampton Rds. Reg'l Jail, 407 F.3d 243,
250 (4th Cir. 2005), “not every inconvenience encountered during pretrial
detention amounts to ‘punishment’ in the constitutional sense,” Martin, 849 F.2d
at 870. “There is, of course, a de minimis level of imposition with which the
Constitution is not concerned.” Ingraham v. Wright, 430 U.S. 651, 674 (1977).
Also, the Fourth Circuit held that “only governmental conduct that ‘shocks the
conscience’ is actionable as a violation of the Fourteenth Amendment.” Young v.
City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
In the case at hand, Plaintiff alleges that Defendants harmed him by placing
an “electronic control device” on his leg while he was attending a hearing. Plaintiff
objects to the Magistrate’s finding that Plaintiff did not suffer any injury.

See

Objections 11–12, ECF No. 16. Plaintiff states that he “sustained emotion[al] and
Page 9 of 11

psychological injuries from [the] experience;” however, he provides no additional
evidence to the Court of these mental injuries.

Furthermore, the Defendants’

behavior did not “shock the conscience,” and was merely an inconvenience for the
Plaintiff. Plaintiff only had to wear the electronic control device for a very short
period of time as a public safety precaution while he was in court for a hearing.
This objection is without merit.
5. New Arguments
Plaintiff raises new arguments in his Objections.

Unlike other circuits, the

Fourth Circuit has held, that as part of its obligation to determine de novo any issue
considered by the magistrate judge to whom a proper objection is made, a district
court must consider all arguments, regardless of whether they were raised before
the magistrate judge. See United States v. George, 971 F.2d 1113, 1118 (4th Cir.
1992).

Therefore, this Court will entertain Plaintiff’s new arguments.

First,

Plaintiff claims that Defendant Adams will use his case “to bolster her re-election
campaign; seek the death penalty against Plaintiff to appear tough on crime, and, in
retaliation against Plaintiff for implicating her and her subordinates in a civil rights
conspiracy.” This argument is a bald allegation of facts with no support, and are,
therefore, not compelling arguments for removal from state court. Next, Plaintiff
alleges the fact that the public has access to court documents through PACER
warrants “federal interference and change of venue from state to federal court.”
Akin to state court records, the public has access to federal court records through
Page 10 of 11

PACER as well.

Therefore, this is not a compelling argument for removal from

state court.
CONCLUSION
After a review of the record, this Court finds that the magistrate’s Report
and Recommendation accurately summarizes this case and the applicable law.
Accordingly, the Report and Recommendation is accepted and adopted in its
entirety.
IT IS THEREFORE ORDERED that Plaintiff’s Complaint is DISMISSED without
prejudice and without issuance of service of process.
IT IS SO ORDERED.

February 15, 2012
Anderson, South Carolina
NOTICE OF RIGHT TO APPEAL
Plaintiff has the right to appeal this Order within thirty (30) days from the
date of the entry of this Order, pursuant to Rules 3 and 4 of the Federal Rules of
Appellate Procedure. Failure to meet this deadline, as modified by Rule 4 of the
Federal Rules of Appellate Procedure, will waive the right to appeal.

Page 11 of 11