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Hewins v. Gardner

United States District Court, D. South Carolina, Greenville Division

October 29, 2018

Erick Hewins, Plaintiff,
Scott Gardner, Rachel Hall, and Sgt. Ben Cothran, Defendants.



         The plaintiff, proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights, as well as state law claims. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the District Court.


         The plaintiff was a pretrial detainee in the Greenville County Detention Center at the time of the filing of his complaint (doc. 1 at 2). A review of the public record indicates that the plaintiff was arrested on August 9, 2010, and charged with drug trafficking. See Greenville Cty. 13th Judicial Circuit Public Index, (Enter the plaintiff's name, click on Case Numbers M383853, M383854). See also Philips v. Pitt Cty. Mem.Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”). Following a jury trial on January 16, 2013, he was sentenced to a term of imprisonment of 25 years. The record further reflects that on April 26, 2016, the plaintiff filed an application for post-conviction relief (“PCR”). On November 4, 2016, the PCR court granted the plaintiff a new trial based upon his claim of ineffective assistance of counsel. See Greenville Cty. 13th Judicial Circuit Public Index (Enter the plaintiff's name, click on Case Number 2016CP2302656). The state's appeal of the PCR court's ruling was denied. The state's petition for a writ of certiorari in the Supreme Court of South Carolina was likewise denied on May 3, 2018 (doc. 1 at 13). The plaintiff alleges he was then transferred from state prison back to the Greenville County Detention Center on June 7, 2018, to await his retrial. By order dated September 10, 2018, the Honorable Mary Geiger Lewis, United States District Judge, dismissed other named defendants and stayed the remainder of the case against the defendants Gardner, Hall, and Cothran while the plaintiff awaited resolution of his pending state criminal cases in the Greenville County Court of General Sessions (doc. 37).

         By order dated October 12, 2018 (doc. 41), the undersigned notified the plaintiff that it had come to the court's attention that the plaintiff pleaded guilty in both underlying state cases on August 21, 2018. See Greenville County 13th Judicial Circuit Public Index, (Enter the plaintiff's name, click on M383853, M383854). As such, it appears that the underlying state cases have now been resolved.[1] Accordingly, the plaintiff was ordered to file his written statement within ten days as to whether this case should remain stayed or now proceed for further judicial screening in light of the apparent resolution of his underlying state criminal cases. More than ten days have elapsed since the entry of this order, and the plaintiff has failed to timely file his written statement. Accordingly, the undersigned recommends that the stay imposed on September 10, 2018, be lifted.


         The plaintiff filed this action on June 27, 2018, alleging claims of abuse of process, malicious prosecution, false arrest, and false imprisonment arising out of his August 2010 arrest. (doc. 1 at 8). In the complaint, the plaintiff names as defendants Greenville City Police Officers Scott Gardner, Rachel Hall, and Sgt. Ben Cothran. He states that he is suing the defendants in their official and personal capacities. The plaintiff alleges that he was subject to an illegal search and seizure conducted by Gardner and Hall (id. at 9-10). He also contends that Cothran conspired with Gardner and Hall to help get him convicted (id. at 10-13). As relief, he seeks monetary damages (id. at 14).


         The 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).

         As a pro se litigant, the 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). 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). In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

         The complaint is filed pursuant to 42 U.S.C. § 1983. To state a claim under Section 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).


         The plaintiff's claims for damages against Gardner, Hall, and Cothran for abuse of process, false arrest, false imprisonment, and malicious prosecution are subject to dismissal pursuant to the Supreme Court's ruling in Heck v. Humphrey, which held that in order to recover damages for a conviction or imprisonment in violation of the United States Constitution, the conviction or imprisonment must first be successfully challenged. 512 U.S. 477, 490 (1994); see Edwards v. Balisock, 520 U.S. 641, 647-48 (1997) (holding that the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies that necessarily imply the invalidity of the judgment). The Supreme Court held:

[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm whose unlawfulness would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages ...

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