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Blake v. McAbee

United States District Court, D. South Carolina, Charleston Division

November 30, 2015

Mark L. Blake, Jr., #667760, Plaintiff,
v.
SC Highway Patrolman Earl Dean McAbee, Defendant.

REPORT AND RECOMMENDATION

MARY GORDON BAKER, Magistrate Judge.

Mark L Blake, Jr. ("Plaintiff") is currently detained at the Charleston County Detention Center in South Carolina. He has filed this civil action pursuant to 42 U.S.C. § 1983, challenging the lawfulness of an arrest that occurred over three years ago. Plaintiff is proceeding pro se and in forma pauperis. This case is now in proper form and ready for review. Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2) (D.S.C.), the United States Magistrate Judge is authorized to review the complaint and to submit findings and recommendations to the District Judge. Upon careful review, the Magistrate Judge recommends that the Complaint be dismissed with prejudice, and without service of process, for the following reasons:

I. Background

Plaintiff filed the present § 1983 action on or about September 14, 2015.[1] Plaintiff challenges a traffic stop and arrest that occurred over three years earlier on April 15, 2012, at approximately 4:00 in the morning. Plaintiff sues the state trooper (defendant S.C. Highway Patrolman Earl Dean McAbee) who made the traffic stop and the arrest. According to Plaintiff, Officer McAbee indicated to Plaintiff that he had stopped Plaintiff for driving over 20 m.p.h. above the posted speed limit. Officer McAbee also indicated that after he had pulled behind Plaintiff's vehicle and activated his vehicle's blue lights, Officer McAbee saw Plaintiff throw something ("marijuana") out the sunroof of Plaintiff's vehicle. Plaintiff complains that Officer McAbee asked him about the "marijuana" he saw Plaintiff throw from the sunroof. Plaintiff alleges that this was an "incriminating question" that violated his constitutional rights because it was prior to the Miranda warning. Plaintiff also alleges that the officer, upon stopping Plaintiff's vehicle, realized that Plaintiff was a "black male" and therefore "racially profiled" him in a "post-textum" stop after pulling him over. Plaintiff's vehicle was searched. Plaintiff was arrested and released on bond.[2]

Plaintiff was subsequently arrested several more times, and the state court revoked his bond. His arrest on February 22, 2013 pursuant to a warrant is the subject of a separate § 1983 lawsuit filed by Plaintiff and is not at issue here. Criminal charges are currently pending in state court.[3]

In the present action, Plaintiff challenges the lawfulness of the April 15, 2012 traffic stop and his arrest on that date. Plaintiff alleges in his own words that: 1) he was "racially profiled in a post-textum (sic) traffic stop based on race;" 2) his "Miranda warnings weren't (sic) read before Plaintiff prior to Defendant's interrogation;" and 3) "Plaintiff's Fourth Amendment of the U.S. Constitution were (sic) violated due to insufficient probable cause; thus making an illegal and unconstitutional arrest." (DE# 1 at 3-4). For relief, Plaintiff wants this Court to: 1) declare that Plaintiff's constitutional rights were violated; 2) order Officer McAbee to pay "nominal and punitive" damages; 3) order Officer McAbee to pay Plaintiff's attorney fees, bonding fees, and costs; and 4) grant any other "just and equitable relief." ( Id. at 5). Although Plaintiff asks for attorney fees, the record reflects that he is proceeding without counsel.

II. Relevant Law

A. Screening of Pro Se IFP Prisoner Complaints

Under established local procedure in this judicial district, the Magistrate Judge has carefully reviewed this pro se prisoner complaint pursuant to 28 U.S.C. § 1915 and 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 Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action is "frivolous or malicious, " Afails to state a claim on which relief may be granted, " or Aseeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory (such as "claims of infringement of a legal interest which clearly does not exist") or clearly baseless factual contentions (such as "claims describing fantastic or delusional scenarios") may be dismissed sua sponte at any time. Neitzke v. Williams, 490 U.S. 319, 327-328 (1989).

With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke, 490 U.S. at 326. 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).

B. Liberal Construction

This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980) (per curiam). The liberal construction afforded pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim, 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), cert. denied, 475 U.S. 1088 (1986). The requirement of liberal construction does not mean that the court can ignore a clear ...


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