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Aparicio v. Al Cannon

United States District Court, D. South Carolina

May 1, 2018

David Lucas Aparicio, #1551948, Plaintiff,
v.
Sheriff Al Cannon, Record Officer FLoyd, Defendants.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin, United States Magistrate Judge

         David 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.

         BACKGROUND

         In the 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.]

         The Court takes judicial notice[1] 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. 2017GS1005795.[2]

         STANDARD OF REVIEW

         Pursuant 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. § 1915A.

         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 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. 1990).

         DISCUSSION

         The 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.

         Failure to State a Claim

         Plaintiff's 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.[3] Although state law provides for a right of action for slander[4] or defamation, [5] an 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).

         Additionally, 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.

         Moreover, 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. ...


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