Dupont v. County of Jasper et al

Filing 21

ORDER adopting in part Report and Recommendations re 16 Report and Recommendation. The Court declines to adopt the R & R's finding that Plaintiff s state law claims are barred by res judicata and the portion of the R & R concerning the statute of limitations. The Court adopts all other portions of the R & R and DISMISSES this action without prejudice and without issuance and service of process. Signed by Honorable Richard M Gergel on 3/12/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Derrick Dupont,

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No.9: 14-cv-3573-RMG

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Plaintiff,

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ORDER

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vs.

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County of Jasper, Jasper County Sheriffs
Department, Jasper County Detention
Center, Sheriff Gregory Jenkins, Deputy
Ernest Walker,

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)
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)
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Defendants.

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This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 16), recommending that this action be summarily dismissed without
prejudice and without issuance of service. Plaintiffhas filed objections to the R & R. For the
reasons stated below, the Court the adopts the R & R in part and dismisses this case without
prejudice.
I. Backeround

Plaintiff alleges that on February 7, 2007, he was arrested on charges of assault and
battery with intent to kill, assault and battery of a high and aggravated nature, and malicious
injury to personal property without any evidence to support the charges. (Dkt. No.1). He makes
a number of allegations about Deputy Walker's use of force during the arrest and alleges that as a
result of Walker's use of force, he sustained a serious neck injury requiring a diskectomy.l (ld.).

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These allegations are laid out in more detail in the R & R. (Dkt. No. 16 at 2).
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Plaintiff appears to alleges constitutional claims pursuant to 42 U.S.C. §§ 1983, 1985 and 18
U.S.C. § 242 and state law claims.
In 2008, Plaintiff brought an action in state court against the County of Jasper, the Jasper
County Sheriffs Office, and Ernest Walker (Case No. 2008-CP·00223), which was removed to
this Court in April of2008 (Case No. 9:08-cv-1755-CWH). A review of the Complaint in that
action reveals that it concerned the same facts as this action. See Dupont v. County ofJasper, et.

al., Case No. 9:08-cv-1755-CWH (D.S.C. 2008) ("Dupont 1"), Dkt. No.1. On August 15,2008,
Plaintiff, represented by counsel, entered into a Consent Order of Dismissal that dismissed his
Section 1983 cause of action with prejudice and his state claims without prejUdice. (Dkt. No. 20­
1 at 3-4).
A week later, Plaintiff filed another lawsuit in state court, Dupont v. County ofJasper, et.

ai, Case No. 2008-CP-27-0529 ("Dupont If') bringing his state law claims concerning the
February 7,2007 arrest. (Dkt. No.1 at 1-2). Records from the Jasper County Court of Common
Pleas indicate that the action was disposed of in a jury trial in September of 20 12, with a defense
verdict. See Jasper County Fourteenth Judicial Circuit Public Index, available at
http://publicindex.sccourts.orglJasper/PublicIndexJCaseDetails.aspx?County=27 &CourtAgency=
27002&Casenum=2008CP2700529&CaseType=V (last visited March 11,2015). Plaintiff
appealed, the Court of Appeals affirmed and remittitur was issued on June 24,2014. See id.;
(Dkt. No.1 at 2). Plaintiff then filed this suit on September 8, 2014. (Dkt. No.1).
The Magistrate Judge recommended that this action be dismissed because it is barred by
the doctrines of res judicata and collateral estoppel, Plaintiffs claims are barred by the statute of

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limitations, and the Plaintiffs suit suffers from a number of other infirmities. (Dkt. No. 16).
Plaintiff filed objections. (Dkt. No. 20).

II. Leeal Standard
A. Report & Recommendation
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. Mathews v. Weber, 423 U.S. 261,270-71 (1976). The 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 is charged with making a de novo determination of those
portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(1»; accord Fed. R. Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court
"must 'only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.' " Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the
absence of specific objections to the R & R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198,
199-200 (4th Cir.l983).

B. Summary Dismissal
Pro se complaints are construed liberally to allow the development of meritorious claims.
See, e.g., Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) ("[A] complaint, especially a
pro se complaint, should not be dismissed summarily unless it appears beyond doubt that the

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plaintiff can prove no set of facts in support of his claim which would entitle him to relief .... ")
(internal quotations omitted). However, the requirement of a liberal construction does not mean
that the Court can ignore a plaintiffs clear failure to allege facts that set forth a cognizable claim.

See Well v. Dep't a/Soc. Servs./or City a/Baltimore, 901 F.2d 387,391 (4th Cir. 1990) ("The
special judicial solicitude with which a district court should view pro se complaints does not
transform the court into an advocate."). Furthermore, the Court must dismiss an in forma

pauperis action sua sponte if the claim is "frivolous or malicious," "fails to state a claim on
which relief may be granted," or "seeks monetary relief against a defendant who is immune from
such relief." 28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319,324-25 (1989).

III. Discussion
A. Plaintiff's Section 1983 Claim
The Court agrees with the Magistrate Judge that the doctrine of res judicata bars
Plaintiffs Section 1983 claim(s). This claim was dismissed with prejudice Dupont I. "It is well
established that dismissals with prejudice-including those resulting from settlement agreements
or consent decrees-are treated as final judgments on the merits for purposes of res judicata."

Jacobs v. Venali, Inc., 596 F. Supp. 2d 906, 914 (D. Md. 2009) (citing Nash Cty. Bd. a/Ed. v.
Biltmore Co., 640 F.2d 484, 487 (4th Cir. 1981)); see also Harrison v. Edison Bros. Apparel
Stores, 924 F.2d 530,534 (4th Cir. 1991) ("A voluntary dismissal with prejudice under Fed. R.
Civ. P. 41(a)(2) is a complete adjudication on the merits of the dismissed claim.").

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Because the Complaint in this action is nearly a verbatim copy of the complaint in
Dupont I against the same parties, res judicata applies. 2 See Union Carbide Corp. v. Richards,

721 F.3d 307, 315 (4th Cir. 2013) (listing the elements of res judicata as "(1) a previous final
jUdgment on the merits, (2) an identity of the cause of action in both the earlier and the later suit,
and (3) an identity of parties or their privies in the two suits"). While res judicata is normally an
affirmative defense, a court may apply the doctrine sua sponte where, as here, "it has previously
decided the issue presented." Georgia Pacific Consumer Prods., LP v. Von Drehle Corp., 710
F.3d 527, 535 (4th Cir. 2013); see also Clodfelter v. Republic ofSudan, 720 F.3d 199,208 (4th
Cir. 2013) (holding district court must exercise its discretion in determining whether "special
circumstances" warrant the court raising res judicata sua sponte).
Plaintiff claims that he did not know about Dupont I, which was removed to federal court,
and only knew about the second suit filed in state court, Dupont II? (Dkt. No. 20). Plaintiff
essentially claims that his attorney did not have authority to stipulate to dismissal of his Section
1983 claim, and, therefore, the judgment should be set aside. (See id.). However, a judgment
that is entered with prejudice, "whether by stipulated dismissal, a consent judgment, or a
confession ofjudgment, is not subject to collateral attack ... Such a judgment has the force of
res judicata until further order of that or a higher court modifying that consent judgment."
Langton v. Hogan, 71 F.3d 930, 935 (1 st Cir. 1995).

2 In this suit, Plaintiff names two additional defendants: Sheriff Gregory Jenkins and the
Jasper County Detention Center. However, he does not make any specific allegations against
these defendants and does not allege a Section 1983 cause of action against them.

The docket in Dupont I reveals that Plaintiff was represented by the same attorneys in
Dupont I and Dupont II.
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In other words, Plaintiff can file a motion for relief from judgment under Fed. R. Civ. P.
60 in the Dupont I case. See, e.g., Cacevic v. City ofHazel Park, 226 F.3d 483, 490 (6th
Cir.2000) (finding that relief under Rule 60(b)(l) is available where an attorney acts without his
client's authority); Yapp v. Excel Corp., 186 F.3d 1222, 1231 (lOth Cir.l999) (same); Buffalo

Wings Factory, Inc. v. Mohd, No. 1:07CV612 (JCC), 2008 WL 2557999, at *6 (E.D. Va. June
23,2008) (same). He cannot, however, file a second suit attempting to attack that judgment.
Therefore, this claim is dismissed.
B. Section 1985 Claim
As the Magistrate Judge stated, a plaintiff cannot maintain a claim under Section 1985(3)
unless the alleged conspiracy was motivated by "some racial, or perhaps otherwise class-based,
invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Plaintiff
has made no such allegations and, thus, fails to state a claim. Therefore, this claim must be
summarily dismissed. 4 See 28 U.S.C. § 1915(e)(2)(B).
C. Title 18 U.S.C. § 242
Plaintiff attempts to assert a claim under 18 U.S.C. § 242. However, this statute is a
criminal statute and does not give rise to civil liability or authorize a private right of action. E.g.,

Rockefeller v.

us. Court ofAppeals Office, for Tenth Circuit Judges, 248 F. Supp. 2d 17,23

(D.D.C. 2003) (collecting cases). Thus, as the Magistrate Judge found, any such purported claim
must be dismissed. s

Plaintiff did not object to the Magistrate Judge's finding that his Section 1985 claim
should be dismissed on this ground. (See Dkt. No. 20).
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Plaintiff did not object to this finding by the Magistrate Judge. (See Dkt. No. 20).

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D. State Law Claims
Having dismissed each of Plaintiff s federal claims, the Court declines jurisdiction over
his state claims under 28 U.S.C. § 1367(c)(3) and dismisses these claims without prejudice.
While his state claims may very well be barred by res judicata, the Court declines to raise the
issue sua sponte because it has declined jurisdiction. Therefore, the Court declines to adopt the
Magistrate Judge's finding that Plaintiffs state law claims are barred by res judicata. Similarly,
because the Court need not reach the issue, the Court declines to adopt the portion of the R & R
concerning the statute of limitations.
IV. Conclusion
The Court declines to adopt the R & R's finding that Plaintiff s state law claims are
barred by res judicata and the portion of the R & R concerning the statute of limitations. The
Court adopts all other portions of the R & R and DISMISSES this action without prejudice and
without issuance and service of process.
IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge
March~, 2015
Charleston, South Carolina

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