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Pearson v. Osterhout

United States District Court, District of South Carolina

November 4, 2014

Keith Rashik Pearson, #290277, Plaintiff,
v.
Shannon Kathleen Osterhout, #698; John George Reckenbeil; Suzanne H. White; Rodney W. Richey, Defendants

Keith Rashik Pearson, Plaintiff, Pro se, Kershaw, SC.

REPORT AND RECOMMENDATION

Jacquelyn D. Austin, United States Magistrate Judge.

Keith Rashik Pearson (" Plaintiff"), proceeding pro se, brings this civil action apparently alleging Defendants violated his constitutional rights. Plaintiff is a South Carolina Department of Corrections (" SCDC") inmate incarcerated at Kershaw Correctional Institution in Kershaw, South Carolina, and he files this action in forma pauperis under 28 U.S.C. § 1915. The Complaint is subject to summary dismissal.

BACKGROUND

In the Complaint, Plaintiff alleges the following pertinent facts related to events that occurred on August 24, 2002, involving several individuals at a residence in Spartanburg, South Carolina. [Doc. 1 at 3-6.] " Person(s)" called emergency response because shots were fired and " person(s)" were injured. [ Id.] Defendant Shannon Kathleen Osterhout (" Osterhout"), a patrol officer working for the Spartanburg County Sheriff's Department and driving vehicle #698, was sent to 104(A) Stone Creek Drive, Spartanburg, SC 29301. [ Id. at 3.] Osterhout entered the apartment and performed a warrantless search and seizure. [ Id.] Certain persons had been shot or grazed by bullets, and EMS workers entered the apartment and transported some of the persons to a hospital. [ Id. at 3-4.] Osterhout went to the hospital to further the investigation. [ Id. at 4.] The same day, Plaintiff " entered himself into custody" at the Spartanburg County Detention facility, and he " fell unconscious" at the booking counter and was transported by EMS to the hospital. [ Id.] Detective Coggins collected gun shot residue test samples from Plaintiff as he lay unconscious before he was sent to the hospital. [ Id.] Plaintiff was treated at the hospital and released into the custody of a Spartanburg County deputy. [ Id. at 5.] He was taken to the detention facility and placed under arrest on August 25, 2002. [ Id.]

Plaintiff seems to allege that on January 21, 2003, after he was denied the opportunity to enter an Alford plea, he was represented by Defendant John G. Reckenbeil (" Reckenbeil") during a jury trial in the Spartanburg County Court of General Sessions where he was found guilty of assault and battery with intent to kill (two counts), assault with intent to kill (five counts), and discharging a firearm into a dwelling. [ Id. at 6.] Plaintiff received a total of 28 years imprisonment, and he did not file an appeal. [ Id.] Plaintiff alleges he filed a post-conviction relief (" PCR") action on August 11, 2003, and he was represented by Defendant Rodney W. Richey (" Richey"). He seems to allege that his PCR action was denied and dismissed, but he was granted a belated direct appeal. [ Id.]

Plaintiff alleges he filed a subsequent PCR action on July 11, 2012. [ Id.] Defendant Suzanne H. White (" White"), an assistant deputy attorney with the Office of the Attorney General, allegedly filed a motion to dismiss and a proposed conditional order of dismissal in that case. [ Id.]

For his relief, Plaintiff seeks a PCR review hearing related to Osterhout's actions in 2002 when she arrived at the scene and related to the procedures used by officers because, allegedly, if they had followed the correct procedures, his sentence would have been reduced. [ Id. at 7.] He seeks an acquittal from his conviction, sentence, fines and fees. [ Id.] He further requests that Defendants " credit loan payment books notices that may have any pendings within the State's courts of common pleas." [ Id.]

STANDARD OF REVIEW

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) DSC, the undersigned is authorized to review the Complaint for relief and submit findings and recommendations to the district court. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the district court to dismiss a case if it is satisfied that the action " fails to state a claim on which relief may be granted, " is " frivolous or malicious, " or " seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

As a pro se litigant, Plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ( per curiam ). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the Court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or " 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

DISCUSSION

The Complaint seems to be filed pursuant to 42 U.S.C. § 1983, which " 'is not itself a source of substantive rights, ' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A civil action under § 1983 " creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Rehberg v. Paulk, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Plaintiff's claims against Reckenbeil and Richey fail to state a claim on which relief may be granted because they did not act under the color of state law.[1] Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). Plaintiff alleges that, in January of 2003, Reckenbeil, an attorney, represented him during a criminal jury trial where he was found guilty of assault and battery with intent to kill ...


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