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Swinton v. Cannon

United States District Court, D. South Carolina

December 15, 2015

Ellis Jerome Swinton, Sr. # 290850, Plaintiff,
v.
J. Al Cannon, Jr., County of Charleston; Charleston County; John Doe I; and John Doe II, Defendants.

ORDER

PATRICK MICHAEL DUFFY United States District Judge.

This matter is before the Court on Plaintiff’s objections to United States Magistrate Judge Jacquelyn D. Austin’s report and recommendation (“R & R”) that the Court dismiss Plaintiff’s pro se complaint without prejudice and without service of process (ECF Nos. 12 & 10). For the reasons provided below, Plaintiff’s objections are sustained in part and overruled in part. The Court dismisses certain of Plaintiff’s claims and returns the case to the magistrate for further consideration of the remaining claims.

BACKGROUND

This case involves Plaintiff’s allegedly unlawful extradition from South Carolina to Arizona. The following factual scenario is taken from the complaint and its attachments.

On November 14, 2013, Plaintiff was taken into the custody of the Charleston County Sheriff’s Office. The following day, a magistrate issued a warrant authorizing the Sheriff’s Office to arrest Plaintiff for being a fugitive from justice. Attached to the warrant was an affidavit from deputy Brian Kellett, in which he averred that Plaintiff had “unlawfully enter[ed] the State of South Carolina, while having outstanding warrants from the State of Arizona.” (Compl. Ex., Kellett Aff., ECF No. 1-1.) Kellett further alleged the Sheriff’s Office had received a fax “from the Maricopa County North Carolina Sheriff’s Office”[1] stating that Plaintiff “had outstanding warrants of arrest . . . in the State of Arizona.” (Id.)

Later on November 15, Kellett gave Plaintiff an extradition waiver form and asked Plaintiff to sign it.[2] The waiver form stated Plaintiff was waving his rights under any laws “that require any formal extradition for [his] transfer from the State of South Carolina to the State of Georgia to answer the charges preferred against [him] in that state.” (Compl. Ex., Extradition Waiver, ECF No. 1-1.) The form further provided that Plaintiff was absolving the Sheriff’s Office and Sheriff Al Cannon “from any and all liability for delivering [Plaintiff] to the proper authorities of the State of Georgia.” (Id.) Plaintiff signed the form.

Plaintiff was never presented with any form waiving his extradition rights for Arizona. He never would have signed such a form and, instead, would have resisted attempts to extradite him to Arizona.

On December 1, 2013, John Doe I and John Doe II, law enforcement agents from an office not identified in the complaint, came to the jail for the purpose of transporting Plaintiff to Arizona. At some point, the agents realized that the extradition waiver form Plaintiff signed was not valid for extradition to Arizona. When they arrived at the jail, they agreed they would present the faulty extradition form to jail personnel and fraudulently represent that the form gave them legal authority to take Plaintiff to Arizona. Over Plaintiff’s objections, Cannon allowed the two agents to take custody of Plaintiff. Plaintiff was then flown to Arizona, and he now lists his address as a state prison in Tucson.

PROCEDURAL HISTORY

This case is the second one Plaintiff has filed this year over his extradition.[3]

First, in May, Plaintiff filed a pro se complaint against the Sheriff’s Office and Sheriff Cannon. He sought damages from them, alleging that they violated his federal civil rights and thus were liable to him under 42 U.S.C. § 1983. The case was referred to Magistrate Judge Austin, who screened the complaint and then filed an R & R recommending that this Court dismiss the complaint without prejudice. She concluded that Cannon and the Sheriff’s Office were immune from suit under the Eleventh Amendment, and in any event, Plaintiff had failed to state a § 1983 claim against Cannon. Plaintiff did not file any objections to that R & R. Finding no clear error in the R & R, the Court adopted it and dismissed the complaint without prejudice.

Several weeks later, Plaintiff filed the present action. He has again sued Cannon, but he substituted Charleston County for the Sheriff’s Office, and he has also sued the two unnamed agents who transported him to Arizona. Plaintiff makes additional allegations regarding his extradition, and he asserts seven causes of action: (1) a due process claim under § 1983; (2) an equal protection claim under § 1983; (3) a due process claim under 42 U.S.C. § 1985; (4) an equal protection claim under § 1985; (5) a declaratory judgment claim under 28 U.S.C. § 2201; (6) a fraud claim under South Carolina law; and (7) a false imprisonment claim under South Carolina law. Plaintiff seeks damages, costs, and declaratory relief.

As with Plaintiff’s first case, the magistrate reviewed the new complaint and issued another R & R recommending that all claims be dismissed without prejudice or service of process. This time, Plaintiff timely filed objections to the ...


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