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Smalls v. Michel

United States District Court, D. South Carolina

April 30, 2014

Demetrius J. Smalls, Plaintiff,
v.
David Michel; Levica Kirvin; Ira Grossman; Linda Lombard; and David Pagliarini, Defendants.

REPORT AND RECOMMENDATION

BRUCE HOWE HENDRICKS, Magistrate Judge.

Plaintiff, Demetrius J. Smalls, also known as Demetrius Jarod Smalls ("Plaintiff"), is a state prisoner in the Lieber Correctional Institution of the South Carolina Department of Corrections ("SCDC") in Ridgeville, South Carolina. Plaintiff files this action against Defendants, pursuant to 42 U.S.C. § 1983, seeking injunctive relief.[1] Plaintiff is proceeding pro se and in forma pauperis, pursuant to 28 U.S.C. §§ 1915, 1915A. Under the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d) (D.S.C.), the undersigned United States Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the Court. Having reviewed the Complaint in accordance with applicable law, the undersigned recommends that it be summarily dismissed, without prejudice and without issuance and service of process, because it fails to state a plausible claim on which relief may be granted by this Court.

PRO SE AND IN FORMA PAUPERIS REVIEW

Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915. The review has been conducted in light of the following precedents: Neitzke v. Williams , 490 U.S. 319, 324-25 (1989); Estelle v. Gamble , 429 U.S. 97 (1976); Haines v. Kerner , 404 U.S. 519 (1972); and Gordon v. Leeke , 574 F.2d 1147 (4th Cir. 1978). The Complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action 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)(i), (ii), (iii). Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams , 490 U.S. 319 (1989).

This Court is required to liberally construe pro se documents, Estelle v. Gamble , 429 U.S. 97, 97 S.Ct. 285 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe , 449 U.S. 5, 101 S.Ct. 173 (1980) (per curiam). Even under this less stringent standard, however, a pro se complaint is subject to summary dismissal. The mandated liberal construction afforded pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir. 1985). 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. Dep't. of Soc. Servs. , 901 F.2d 387 (4th Cir. 1990).

BACKGROUND

Plaintiff alleges that Defendant Michel is "the Municipal Court Judge in the town of Mount Pleasant, " Defendant Kirvin is "the Municipal Court Administrator in the Mount Pleasant Municipal Court, " Defendant Lombard is "the Charleston County Centralized Bond Hearing Court Judge, " and Defendants Grossman and Pagliarini are "the Corporation Counsel of the Town of Mount Pleasant." Complaint, ECF No. 1-1, p. 1-2. Plaintiff alleges that he is "challenging the interpretation of the underlying (state) statutes and court rules governing the decision in case no. 2004-010174, " and that he

seeks injunctive relief to terminate the Mount Pleasant Municipal Court from depriving the Plaintiff of his United States Constitutional Right to Due Process of Law, by such corporation suppressing the order of entry of judgment, sentencing sheets, and etc. from the Plaintiff. Such act deprives the Plaintiff of his right to subject the prosecution to a meaningful adversarial challenge, by collaterally attacking the subject matter jurisdiction issue in case no. 2004-010174 on post-conviction relief.

Complaint, ECF No. 1, p. 1. Plaintiff alleges that "after being tried in absentia, for offenses 56-1-440, driving without a license 1st, and 16-5-50, interference with/hindering officers... the Municipal Court suppressed orders of judgment, sentencing sheets, and witnesses testimony that was used to convict him in his absence in such case." Id. at 2. Plaintiff alleges that "the Town of Mount Pleasant Municipal Court has restrained his liberty in subjecting the prosecution to a meaningful adversarial challenge, by depriving him of the order of judgment, to afford him of his right to appeal his conviction, and collaterally attack his conviction based on the Court's means of acquiring jurisdiction to hear and decide case no. 2004-010174." Id.

As to the relief he seeks, Plaintiff asks for an injunction ordering the Mount Pleasant Municipal Court "to issue the order of entry of judgment so that Plaintiff can collaterally attack his conviction in case no. 2004-010174 on appeal and present before the post-conviction relief court that no order was sent to the South Carolina Court Administration to be approved for consistency with statewide administrative policies in order for such order to be effective to commence a criminal trial and enter a judgment of the court." Id. at 10. Plaintiff alleges

this is not an attempt to have the District Court rule on, or render the conviction of case no. 2004-010174 illegal. This is simply to order the Court to allow the Plaintiff access to all orders of judgment, sentencing sheets, and witnesses testimony as Rule 72, SCRCP and S.C. Code Ann. 14-25-95 1976 Code or S.C. Code Ann. 14-5-340 1976 Code provides, (5, 14 USCA) in order for the Plaintiff to obtain a reversal or vacated judgment on appeal of case no. 2013-CP-10-4356, being that such order has been suppressed from the Plaintiff from Feb. 3, 2005, to the present day.

Id. at 11.[2]

DISCUSSION

Plaintiff's Complaint, filed on March 18, 2014, alleging violations of Plaintiff's due process rights in municipal court proceedings that occurred in January and February 2005, clearly appears on its face to be untimely. Based on Owens v. Okure , 488 U.S. 235 (1989) and Wilson v. Garcia , 471 U.S. 261 (1985), a state's general or residual statute of limitations governing personal injury actions is the applicable statute of limitations for § 1983 actions. In South Carolina, that has been held to be S.C. Code Ann. § 15-3-530(5). Thus, the applicable statute of limitations for the instant Complaint is three years.[3] It plainly appears from Plaintiff's Complaint that the actions upon which Plaintiff is basing this lawsuit took place on February 3, 2005 (Plaintiff's trial in case no. 2004-010174). Complaint, ...


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