United States District Court, D. South Carolina
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
plaintiff, David Barajas (“Plaintiff”), a
detainee at the Greenville County Detention Center who is
proceeding pro se and in forma pauperis,
filed this action pursuant to 42 U.S.C. § 1983 against
the State of South Carolina Grand Jury and his attorney,
Randy Hiller. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1), and Local Civil Rule 73.02(B)(2)(e)
(D.S.C.), this case was referred to the undersigned United
States Magistrate Judge for consideration. After careful
review, the undersigned recommends that the complaint be
dismissed without prejudice, and without issuance and service
of process, for the reasons set forth below.
was indicted by the defendant State of South Carolina Grand
Jury (“Grand Jury”) for conspiracy to traffic in
methamphetamine (Indictment 2015-GS-47-08) (doc. 1 at 2).
Plaintiff's complaint alleges that the Grand Jury
violated his rights under the Sixth and Fourteenth Amendments
to the United States Constitution, and that Randy Hiller
(“Hiller”), provided ineffective assistance of
counsel in violation of Plaintiff's Sixth Amendment
rights (doc. 1 at 3-6). Plaintiff asks this court (1) to
issue an injunction requiring the Grand Jury to dismiss the
indictment, and (2) to order his release from the Greenville
County Detention Center (doc. 1 at 6). Plaintiff has filed a
supplemental pleading in support of his request for an
injunction (doc. 11).
to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local
Civil Rule 73.02(B)(2)(e) (D.S.C.), 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). 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).
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 (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
the 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 the 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 (4th Cir. 1990).
request for an injunction is construed as seeking a temporary
restraining order (“TRO”) without notice to the
adverse parties. See Reid v. White, C.A. No.
6:17-2695-BHH-KFM, 2017 WL 5197228, at *1 (D.S.C. Oct. 16,
2017), adopted in 2017 WL 5176907 (D.S.C. Nov. 7, 2017). A
TRO is a drastic remedy that serves an exceedingly narrow
purpose. It exists only to preserve the status quo
until a preliminary injunction hearing can be held.
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174
F.3d 411, 422 (4th Cir. 1999) (citing Granny Goose Foods,
Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70 of Alameda Cty., 415 U.S. 423, 439 (1974)). The
standard for granting a request for a TRO and entering a
preliminary injunction are identical. See, e.g.,
Sauer-Danfoss (US) Co. v. Nianzhu Luo, C.A. No.
8:12-3435-HMH, 2012 WL 6042831, at *1 (D.S.C. Dec. 5, 2012)
(citing Commonwealth of Virginia v. Kelly, 29 F.3d
145, 147 (4th Cir. 1994) (applying preliminary injunction
standard to a request for TRO)). In order for such injunctive
relief to be granted, the movant must establish that
“he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in
his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). All four requirements must
be satisfied. Real Truth About Obama, Inc. v. Fed.
Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009),
vacated on other grounds, 559 U.S. 1089 (2010),
reinstated in relevant part on remand, 607 F.3d 355
(4th Cir. 2010) (per curiam).
first Winter factor is dispositive of this case,
because Plaintiff has not demonstrated that he is likely to
succeed on the merits. First, to the extent that Plaintiff
appears to be asking this court to intervene in his pending
criminal case in Greenville County, the court cannot do so,
because, absent extraordinary circumstances, federal courts
are not authorized to interfere with a State's pending
criminal proceedings. See, e.g., Younger v. Harris,
401 U.S. 37, 44 (1971). It follows that Plaintiff's claim
against the Grand Jury is “frivolous” within the
meaning of 28 U.S.C. § 1915(e)(2)(B) because the
complaint “lacks an arguable basis either in law or in
fact.” Denton, 504 U.S. at 31. Section
1915(e)(2)(B) permits a court to dismiss, sua
sponte, a claim based on a meritless legal theory.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
the Anti-Injunction Act, codified at 28 U.S.C. § 2283,
expressly prohibits this court from enjoining state court
proceedings. See Bonner v. Circuit Court of St.
Louis, 526 F.2d 1331, 1336 (8th Cir. 1975) (en banc)
(“Congress and the federal judiciary have consistently
recognized that federal courts should permit state courts to
try state cases, and that, where constitutional issues arise,
state court judges are fully competent to handle them subject
to Supreme Court review.”); cf. District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476
(1983) (federal courts cannot review state court proceeding
in appellate sense). Thus, this action should be dismissed
because this court may not intervene in Plaintiff's
pending state criminal proceedings.
to the extent that Plaintiff is requesting to be released
from the detention center, such relief may only be obtained
in a habeas action. See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973) (A complaint or petition challenging the
fact or duration of confinement should be construed and
processed as a habeas corpus petition, while a complaint or
petition challenging the conditions of confinement should be
construed and processed as a complaint pursuant to 42 U.S.C.
§ 1983). In Heck v. Humphrey, 512 U.S. 477
(1994), the Fourth Circuit reiterated that release from
prison is not a remedy available under 42 U.S.C. § 1983.
Id. at 481 (stating that “habeas corpus is the
exclusive remedy for a state prisoner who challenges the fact
or duration of his confinement and seeks immediate or
speedier release, even though such a claim may come within
the literal terms of § 1983”). Therefore, any such
claim should be dismissed.
pretrial petitions for habeas corpus are properly brought
under 28 U.S.C. § 2241, “‘which applies to
persons in custody regardless of whether final judgment has
been rendered and regardless of the present status of the
case pending against him, '” United States v.
Tootle, 65 F.3d 381, 383 (4th Cir. 1995) (quoting
Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.
1987)), “‘an attempt to dismiss an indictment or
otherwise prevent a prosecution'” is not attainable
through federal habeas corpus. Dickerson, 816 F.2d
at 226 (quoting Brown v. Estelle, 530 F.2d 1280 (5th
Cir. 1976)). A federal writ of habeas corpus under 28 U.S.C.
§ 2241 can only be sought after the petitioner has
exhausted his state remedies. Exhaustion is statutorily
required by 28 U.S.C. § 2254; whereas, when a petition
for writ of habeas corpus is brought by a state prisoner
pursuant to 28 U.S.C. § 2241, the exhaustion of state
remedies is a judicially created requirement. See Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91
(1973) (exhaustion required under 28 U.S.C. § 2241). In
the instant case, Plaintiff “has not established, or
even alleged, that his administrative remedies have been
exhausted. Thus, the [Section 2241] petition would be
recommended for summary dismissal, without prejudice . . .
.” Henderson v. Owen, C.A. 3:09-1880-HMH-JRM,
2009 WL 2782269, at *3 (D.S.C. Aug. 27, 2009).
Plaintiff fails to state a claim against Hiller. Plaintiff
alleges that Hiller, his attorney, provided ineffective
assistance of counsel when Hiller (1) worked with the
prosecution to craft a plea bargain prior to his first
meeting with Plaintiff; (2) refused to provide Plaintiff with
an interpreter so Plaintiff could understand the plea
bargain; (3) failed to consult with Plaintiff and keep him
informed; (4) failed to file a motion to dismiss based on the
Speedy Trial Act; (5) failed to investigate the case; and (6)
failed to share the case record with the Plaintiff. Hiller is
entitled to summary dismissal because Plaintiff has alleged
no facts to indicate that Hiller acted under color of state
law. An attorney, whether retained, court-appointed, or a
public defender, does not act under color of state law.
See Polk Cty. v. Dodson, 454 U.S. 312, 317-324
nn.8-16 (1981) (“A lawyer representing a client is not,
by virtue of being an officer of the court, a state actor
‘under color of state law' within the meaning of