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Barajas v. State of South Carolina Grand Jury

United States District Court, D. South Carolina

March 27, 2018

David Barajas, Plaintiff,
State of South Carolina Grand Jury, Randy Hiller, ESQ, Defendants.


          Kevin F. McDonald United States Magistrate Judge.

         The 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.[1] 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.


         Plaintiff 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[2] (doc. 1 at 6). Plaintiff has filed a supplemental pleading in support of his request for an injunction (doc. 11).


         Pursuant 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).

         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 (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).


         Plaintiff's 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).

         The 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).

         Second, 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.

         Next, 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.

         Although 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).

         Lastly, 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 § ...

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