United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Lucas Aparicio (“Plaintiff”), proceeding pro se,
brings this civil action pursuant to 42 U.S.C. § 1983,
alleging Defendants violated his constitutional rights.
Plaintiff is a pre-trial detainee incarcerated at the
Charleston County Detention Center, and he files this action
in forma pauperis under 28 U.S.C. § 1915. The Complaint
is subject to summary dismissal.
Complaint, Plaintiff alleges the following facts. Plaintiff
was arrested on June 14, 2017. [Doc. 1 at 5.] Defendants
Sheriff Al Cannon and the records officer, Floyd, put false
facts of Plaintiff's arrest on the
“enter-net.” [Id.] Anyone “on the
out side” can pull up this false information and use it
against Plaintiff to hurt him and discriminate against him.
[Id.] This violates his due process and equal
protection rights. [Id.] Plaintiff questions whether
the false information was posted on the
“enter-net” because Plaintiff is Mexican and
whether this is racial discrimination. [Id.]
Plaintiff alleges he sustained “mental damage and
worry” over the lies that were published about him.
[Id. at 7.] For his relief, Plaintiff seeks 10
million dollars in damages and for all charges against him to
be dismissed and his record cleared. [Id.]
Court takes judicial notice that Plaintiff has been charged
with the following crimes, which remain pending against him
in the Charleston County Court of General Sessions: (1)
contributing to the delinquency of a minor at indictment No.
2017GS1005793, (2) criminal sexual conduct with a minor, 3rd
degree at indictment No. 2017GS1005794, and (3) criminal
sexual conduct with a minor, 3rd degree at indictment No.
to the provisions of 28 U.S.C. §636(b)(1)(B), and Local
Civil Rule 73.02(B)(2)(d) DSC, 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). Further, Plaintiff is a prisoner under the
definition in 28 U.S.C. § 1915A(c), and “seeks
redress from a governmental entity or officer or employee of
a governmental entity.” 28 U.S.C. § 1915A(a).
Thus, even if Plaintiff had prepaid the full filing fee, this
Court is charged with screening Plaintiff's lawsuit to
identify cognizable claims or to dismiss the Complaint if (1)
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted or (2) seeks monetary relief from
a defendant who is immune from such relief. 28 U.S.C. §
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 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
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, 391 (4th Cir.
Complaint is filed pursuant to 42 U.S.C. § 1983, which
“‘is not itself a source of substantive rights,
' but merely provides ‘a method for vindicating
federal rights elsewhere conferred.'” Albright
v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil
action under § 1983 “creates a private right of
action to vindicate violations of ‘rights, privileges,
or immunities secured by the Constitution and laws'
of the United States.” Rehberg v. Paulk, 132
S.Ct. 1497, 1501 (2012). To state a claim under § 1983,
a plaintiff must allege two essential elements: (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). Liberally
construed, the Complaint appears to assert a claim for
defamation and a due process violation.
to State a Claim
claims against Defendants should be dismissed for failure to
state a claim on which relief may be granted. Plaintiff's
allegations relate to Defendants' misconduct in posting
false information about the Plaintiff on the internet;
however, defamation, slander, and libel fail to state a
cognizable claim under § 1983. Although state law provides
for a right of action for slander or defamation,
alleged act of defamation of character or injury to
reputation is not actionable under 42 U.S.C. § 1983.
See, e.g., Paul v. Davis, 424 U.S. 693, 697-710
& nn. 3-4 (1976); Washington v. Tilton, No.
2:10-cv-997-HFF-RSC, 2010 WL 2084106, at *3 (D.S.C. May
7, 2010), Report and Recommendation adopted by 2010 WL
2084383 (D.S.C. May 19, 2010). Civil rights statutes, such as
§ 1983, do not impose liability for violations of duties
of care arising under a state's tort law. DeShaney v.
Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189,
200-03 (1989). Here, Plaintiff's defamation claim does
not implicate the violation of any federal right. A §
1983 action may not be “based alone on a violation of
state law or on a state tort.” Clark v. Link,
855 F.2d 156, 161 (4th Cir. 1988). A state law claim
“does not become a constitutional violation merely
because the victim is a prisoner.” See Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Thus, Plaintiff's
allegations concerning a purely state law claim fail to
establish a claim for a violation of a federal right as
required under § 1983, and therefore his claim must be
dismissed. Wilson v. Ozmint, No. 3:10-cv-2887-RMG,
2011 WL 1336391, at *1-2 (D.S.C. Apr. 7, 2011).
Plaintiff's Complaint fails to state a plausible federal
constitutional claim because the First Amendment does not
provide a private cause of action for defamation. See,
e.g., Siegert v. Gilley, 500 U.S. 226, 233 (1991)
(“Defamation, by itself, is a tort actionable under the
laws of most States, but not a constitutional
deprivation.”); Sonnier v. Roman Catholic Diocese
of Lafayette, No. 6:16-cv-1229, 2017 WL 778153, at *3
(Jan. 18, 2017) (“there is nothing in the First
Amendment to create a private cause of action for either
defamation or invasion of privacy”), Report and
Recommendation adopted by 2017 WL 778003 (W.D. La. Feb. 24,
2017); Davis v. City of Aransas Pass, No.
2:13-cv-363, 2014 WL 2112701, at *1 (S.D. Tex. May 20,
2014) (“there is no federal constitutional right to be
free from defamation or slander”). It is well settled
that 42 U.S.C. § 1983, the federal statute under which
damage claims for constitutional violations may be raised,
may not be used to assert defamation claims. See Paul, 424
U.S. at 711-12 (explaining interest in reputation alone does
not implicate a “liberty” or
“property” interest sufficient to invoke due
process protection under § 1983); Cinel v.
Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (same);
Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990)
(same); Mowbray v. Cameron County, Tex., 274 F.3d
269, 277 (5th Cir. 2001) (explaining public humiliation,
scorn, and ridicule from being criminally investigated does
not state plausible claim for a constitutional violation).
Accordingly, Plaintiff has failed to allege facts showing
that his constitutional rights were violated.
this Court is without jurisdiction to hear a state law
defamation claim to the extent Plaintiff seeks to bring his
defamation claim under state law. Defamation is a tort under
state law that may be considered by this Court only under its
diversity or supplemental jurisdiction. Blackstock v.
Miller, No. 4:17-cv-01926-RBH-KDW, 2017 WL 3530525, at
*1-2 (D.S.C. July 28, 2017), Report and Recommendation
adopted by 2017 WL 3500219 (D.S.C. Aug. 16, 2017). Thus, to
the extent Plaintiff seeks to bring state law claims against
the Defendants, Plaintiff may do so under the diversity
statute, if the statutory requirements are satisfied. See
Cent. W.Va. Energy Co. v. Mountain State Carbon,
LLC,636 F.3d 101, 103 (4th Cir. 2011). The diversity
statute requires complete diversity of parties and an amount
in controversy in excess of seventy-five thousand dollars
($75, 000.00). See id.; 28 U.S.C. § 1332(a). Complete
diversity of parties in a case means that the citizenship of
every plaintiff must be different from the citizenship of
every defendant. Central W.Va. Energy Co., 636 F.3d at 103.
Here, both Plaintiff and Defendants in this case appear to be
South Carolina residents; thus, there is no basis for
diversity jurisdiction over this action. See, e.g.,
Newman-Greene, Inc. v. Alfonzo-Larrain,490 U.S. 826,
829 (1989) (complete diversity required); C.L. ...