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Cole v. White

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

February 2, 2017

Brandon Vernon Cole, # 319318, Plaintiff,
v.
Alma White, et al., Defendants.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.

         This is a civil action pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner incarcerated at Manning Correctional Institution in South Carolina. He is proceeding pro se and in forma pauperis. After three proper form orders, this case is now in proper form. Pursuant to the provisions of 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2) (D.S.C.), the United States Magistrate Judge is authorized to review the case initially and to submit findings and recommendations to the United States District Judge. After careful review, the Magistrate Judge recommends that the Amended Complaint DE# 6) be summarily dismissed, without prejudice, and without issuance and service of process, for the following reasons:

         I. The Present Lawsuit

         A. Parties

         Plaintiff is a state prisoner currently serving a two and one-half year sentence for credit card fraud.[1] He has a projected release date of February 21, 2017. Plaintiff filed a complaint under 42 U.S.C. § 1983, which he amended on December 1, 2016. (DE# 6, “Amended Complaint” totaling 68 pages with attachments). In his Amended Complaint, Plaintiff sues the following five defendants: (1) Alma White (Clerk of Court); 2) Alicia Richardson (Deputy Solicitor); 3) Albert Kohut (Law Enforcement Officer); 4) John Benso (Magistrate Judge); and 5) Wyn Bessent (Public Defender). (DE# 6).[2] Plaintiff indicates that he is suing them in their official and individual capacities. (Id. at 4, ¶ I(B)).

         B. The Amended Complaint's Allegations

         The allegations of Plaintiff's Amended Complaint are rather difficult to follow. The gist of the Amended Complaint is that Plaintiff is complaining of an alleged date discrepancy in his state court paperwork, which Plaintiff characterizes as “fraudulent” behavior by the defendants. According to Plaintiff, Judge Benso had signed an arrest warrant for forgery charges against Plaintiff on 10/26/2015. Plaintiff contends that Officer Kohut indicated in his report that “on 10/27/2015 … I served said warrant on the defendant who was being housed the GCOC on unrelated charges.” (DE# 6 at 6). Plaintiff alleges that Officer Kohut “lied in his case report” because several court forms (a hearing notice and a checklist) allegedly bear the “forged” initials of Plaintiff. Plaintiff alleges that Magistrate Judge Benso signed Plaintiff's initials. (Id.). Plaintiff complains that the “form has my first court appearance date instead of my bail proceeding date and this is to cover up the fraud and forgery that has tooken place.” (Id.).

         Plaintiff alleges that Judge Benso knew Plaintiff was not in “bonding court” on 10/27/2015, but rather, on 10/29/2015. (DE# 6 at 6). Plaintiff then alleges (inconsistently) that he was in “bonding court” on 10/26/2015. (Id.). Plaintiff claims that his signatures on the “consent to video conferencing forms” are forged. (Id.). He complains that he did not receive a preliminary hearing. Although Plaintiff was represented by appointed counsel in the criminal prosecution against him for credit card fraud, Plaintiff filed a pro se motion for discovery. He complains that the presiding judge and prosecutor were aware of such motion, but that his counsel did not “push the issue.” Plaintiff concludes that this is “fraudulent conduct by public officials.” (Id.). He alleges that in his discovery motion, he “explained how the Clerk of Court, Magistrate Judge, and Officer was involved in the forgery and copied documents in a fraudulent manner.” (Id. at 14). He complains that the Judge “signed my warrants, ” the Clerk of Court “filed my motion, ” and the prosecutor received a “defrauded motion for discovery.” (Id. at 6). Plaintiff alleges that the “Card Fraud charge number [was] scratched out and the charge number for forgery [was] written on top.” (Id. at 11). He alleges his counsel knew of these actions, did not speak up, and was therefore “ineffective.” (Id.). He complains that the prosecutor (Alicia Richardson) “moved forward to prosecute me regardless of this reckless, criminal, and fraudulent conduct.” (Id.). Plaintiff alleges that “I believe that Albert Kohut, Law Enforcement Officer, John Benso, Magistrate Judge, Alma White, Clerk of Court all worked together to form these unlawful duties.” (Id.).

         C. Relief Sought

         For relief, Plaintiff wants this Court: 1) to prosecute the defendants; 2) “remove this punishment from me and my record;” and 3) “$3, 000, 000.00 for pain and suffering, deprivation of rights and actual damages” (DE# 6 at 9, ¶ VI “Relief”). Elsewhere in his Amended Complaint, he demands $1, 500.00 for “every day I was incarcerated.” (Id. at 12).

         II. Standard of Review

         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).

         As the pro se Plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915 applies to this case. Such statute permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the action. To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the case 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). 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). A claim based on a meritless legal theory may be dismissed sua sponte “at any time” under 28 U.S.C. §1915(e)(2)(B). Neitzke, 490 U.S. at 319. The statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Id. at 326. The Prison Litigation Reform Act (“PLRA”) also provides for the screening of complaints “in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

         Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). However, “[t]he ‘special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed.” Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving “liberal construction” does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. “Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).

         III. Discussion

         A. Civil Actions under 42 U.S.C. § 1983, Failure to State a Claim

         A civil action under 42 U.S.C. § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a § 1983 claim, a plaintiff must allege facts indicating: (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 (1988). While a complaint need not expressly invoke § 1983 as the legal theory for a plaintiff's claim, the United States Supreme Court has instructed that a complaint “must plead facts sufficient to show that [a] claim has substantive plausibility.” Johnson v. City of Shelby, 135 S.Ct. 346 (2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009)). The present Amended Complaint fails to meet this minimal pleading standard.

         The United States Supreme Court has made it clear that a plaintiff must do more than make conclusory statements to state a plausible claim. Iqbal, 556 U.S. at 677-79; Bell Atlantic Corp., 550 U.S. at 555. Even with liberal construction, the present Amended Complaint is subject to summary dismissal for failure to state a plausible claim for relief. Carter v. Norfolk Comm. Hosp. Assoc., 761 F.2d 970, 974 (4th Cir. 1985) (“A district court's dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice.”). Plaintiff has not ...


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