United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kevin F. McDonald, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Armando Despaigne
Zulveta (“Zulveta”), proceeding pro se, is
seeking relief pursuant to 42 U.S.C. § 1983. Zulveta
files this action in forma pauperis under 28 U.S.C. §
1915. Zulveta alleges conspiracy, fraud, wire fraud, and
obstruction of justice against the twelve above-captioned
Defendants. (Compl. 1-2, ECF No. 1.) Magistrate Judge
McDonald recommends dismissing the complaint without
prejudice and without issuance and service of process.
(R&R, ECF No. 18.) In addition, Zulveta filed a second
motion for leave to proceed in forma pauperis and a motion to
recuse the undersigned. (Pl. Sec. Mot. Leave, ECF No. 23);
(Mot. Recuse, ECF No. 21.) Having already granted
Zulveta's motion for leave to proceed in forma pauperis,
the court denies Zulveta's second motion for leave to
proceed in forma pauperis as moot. (Feb. 28, 2018 Order, ECF
filed objections to the Report and Recommendation. Objections
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of Zulveta's objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge's Report and Recommendation, or
merely restate his claims. However, the court was able to
glean two specific objections. First, Zulveta objects that
dismissal of his complaint is “extremely
premature.” (Objs. 1, ECF No. 22.) Second, Zulveta
objects to the magistrate judge's finding that Letitia H.
Verdin (“Judge Verdin”), D. Garrison Hill
(“Judge Hill”), Robin B. Stilwell (“Judge
Stilwell”), Stephen Lopez (“Lopez”), Shawn
Knox (“Knox”), Desiree R. Allen
(“Allen”), and Hollie M. Jenkins
(“Jenkins”) must be dismissed because they are
entitled to immunity. (Id. at 2-3, ECF No. 22.)
Zulveta contends that dismissal of his complaint is premature
because the defendants “have yet to be . . . served the
appropriate Summons and Complaint.” (Id. at 1,
ECF No. 22.) Zulveta filed this action in forma pauperis
pursuant to 28 U.S.C. § 1915. Section 1915(e)(2)(B)
authorizes the court to dismiss a case at any time if the
court determines that the action “is frivolous, ”
“fails to state a claim on which relief may be granted,
” or “seeks monetary relief against a defendant
who is immune from such relief.” “[A] complaint .
. . is frivolous where it lacks an arguable basis either in
law or in fact.” Denton v. Hernandez, 504 U.S.
25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S.
490 U.S. 319, 325 (1989)). “Dismissals on these grounds
are often made sua sponte prior to the issuance of
process, so as to spare prospective defendants the
inconvenience and expense of answering such
complaints.” Neitzke, 490 U.S. at 324.
Therefore, dismissal prior to the issuance of process in this
case is appropriate on the grounds set forth in §
1915(e)(2)(B), and Zulveta's objection is without merit.
Zulveta argues that Judge Verdin, Judge Hill, Judge Stilwell,
Lopez, Knox, Allen and Jenkins are not immune from suit.
(Objs. 2-3, ECF No. 22.) Zulveta alleges claims of conspiracy
and fraud against Judge Verdin, Judge Hill and Judge Stilwell
(collectively “state court judges”), based upon
their rulings in his state court case. (Compl. 3-7, ECF No.
1.) Upon review, the court finds that all of Zulveta's
claims against the state court judges are based upon their
judicial duties with respect to Zulveta's state court
case. A state court judge has absolute immunity from a claim
for damages arising out of a judicial act unless the judge
acted in the complete absence of all jurisdiction. See
Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam);
Stump v. Sparkman, 435 U.S. 349, 355-64 (1978);
see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir.
1985) (“It has long been settled that a judge is
absolutely immune from a claim for damages arising out of his
[or her] judicial actions.”) (citations omitted).
an act by a judge is a ‘judicial' one relate[s] to
the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the
expectations of the parties, i.e., whether they
dealt with the judge in his judical capacity.”
Stump, 435 U.S. at 362. Immunity applies even when
the judge's acts were in error, malicious, or in excess
of his authority. Mireles, 502 U.S. at 12-13;
see also Pierson v. Ray, 386 U.S. 547, 554 (1967)
(“[I]mmunity applies even when the judge is accused of
acting maliciously and corruptly”). Absolute immunity
is “an immunity from suit rather than a mere
defense to liability.” Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). In his complaint, Zulveta does not
allege that the state court judges acted in the absence of
jurisdiction. Based on the foregoing, the court finds that
Judge Verdin, Judge Hill, and Judge Stilwell have absolute
immunity from all of Zulveta's claims against them.
Accordingly, Zulveta's objection is without merit.
Zulveta alleges claims of conspiracy, fraud, wire fraud, and
obstruction of justice against Greenville County Clerk of
Court employees Lopez and Knox. (Compl. 1-2, 7-8, ECF No. 1.)
Zulveta objects to the magistrate judge's finding that
Lopez and Knox have quasi-judicial immunity from this suit.
(Objs. 3, ECF No. 22.) However, this objection is without
merit. Lopez and Knox are entitled to “a derivative of
judicial immunity known as quasi-judicial immunity for
alleged actions taken in the course of their court
duties.” Taylor v. Brooks, No. 3:15-1138-RMG,
2015 WL 4274834, at *2 (D.S.C. July 14, 2015),
aff'd, 627 Fed.Appx. 206 (4th Cir. Dec. 22,
2015) (unpublished); see also Jarvis v. Chasanow,
No. 11-1249, 2011 WL 4564336, at *1 (4th Cir. Oct. 4, 2011)
(unpublished) (Clerk of Court employees and other court
support personnel who play an integral part in the judicial
process are entitled to quasi-judicial immunity.); see
also Baccus v. Wickensimer, No. 9:13-1977-DCN, 2013 WL
6019469, at *2 (D.S.C. Nov. 13, 2013) (unpublished) (Claims
against the Clerk of Court for Greenville County “are
barred by the doctrine of absolute judicial immunity . . .
and as the Fourth Circuit recognized in Pope v.
Chew, 521 F.2d 400, 405 (4th Cir. 1975), individuals
cannot be sued for damages in a § 1983 case for actions
stemming from the performance of quasi-judicial
functions.”). Zulveta's claims against Lopez and
Knox are based upon their actions taken as employees for the
Clerk of Court for Greenville County. Based on the foregoing,
the court finds that Lopez and Knox are entitled to
addition, Zulveta alleges claims of conspiracy and fraud
against state court reporters Allen and Jenkins, and, an
additional claim of obstruction of justice against Jenkins.
(Compl. 1-2, 8, ECF No. 1.) Zulveta objects to the magistrate
judge's finding that Allen and Jenkins are entitled to
Eleventh Amendment immunity. (Objs. 3, ECF No. 22.) However,
Zulveta claims that Allen and Jenkins were “at all
times acting within the purpose and scope of their agency and
employment.” (Compl. 2, ECF No. 1.) Accordingly,
Zulveta is suing Allen and Jenkins only in their official
capacities. Eleventh Amendment immunity applies to
“state employees acting in their official
capacity.” Harter v. Vernon, 101 F.3d 334, 337
(4th Cir. 1996); see also Barnes v. Thueme, No.
5:13-2349-RMG, 2013 WL 5781711, at *2 (D.S.C. Oct. 25, 2013,
aff'd, 559 Fed.Appx. 205 (4th Cir. Mar. 5, 2014)
(unpublished) (State court reporter sued in her official
capacity was entitled to Eleventh Amendment immunity.). Based
on the foregoing, the court finds that Allen and Jenkins are
entitled to Eleventh Amendment immunity. Thus, Zulveta's
objection is without merit. Therefore, after a thorough
review of the magistrate judge's Report and the record in
this case, the court adopts Magistrate Judge McDonald's
Report and Recommendation.
Zulveta filed a motion to recuse the undersigned from the
instant action on April 25, 2018. (Mot. Recuse, ECF No. 21.)
28 U.S.C. § 455(a) provides that “[a]ny justice,
judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” There is
no evidence that the court has demonstrated partiality or
provided an appearance of partiality. Based on the foregoing,
Zulveta's motion for recusal is denied.
that Zulveta's complaint, docket number 1, is dismissed
without prejudice and without issuance and service of
process. It is further
that Zulveta's motion for leave to proceed in forma
pauperis, docket number 23, is denied as moot. It is further
that Zulveta's motion for recusal, docket ...