United States District Court, D. South Carolina, Anderson/Greenwood Division
John L. Mills, Plaintiff,
Magistrate Judge Bristow Marchant, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Mills (“Plaintiff”), proceeding pro se and in
forma pauperis, brings this civil action pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388, 397 (1971),  against United States Magistrate Judge
Bristow Marchant (“Judge Marchant”), alleging
violations of his constitutional rights. Plaintiff is an
inmate in the South Carolina Department of Corrections and is
currently incarcerated at the Lieber Correctional
Institution. Pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the
undersigned Magistrate Judge is authorized to review such
actions for relief and submit findings and recommendations to
the District Judge. For the reasons below, the Complaint is
subject to summary dismissal with prejudice and without
issuance and service of process. Further, the dismissal
should be counted as a strike under 28 U.S.C. § 1915(g).
to the Complaint, Judge Marchant violated Plaintiff's
constitutional rights to due process and equal protection
under the Fifth and Fourteenth Amendments to the United
States Constitution. [Doc. 1 at 6.] Plaintiff alleges that he
was convicted of murder, after which he received an
“overwhelming amount of exculpatory evidence.”
[Id. at 9.] In February 2008, Plaintiff filed an
action pursuant to 42 U.S.C. § 1983 against several
judicial employees and county and city law enforcement
agents, seeking money damages for claims apparently related
to his criminal conviction. [Id.] Judge Marchant was
assigned to handle the pretrial proceedings of that case,
which can be found at case number 0:08-cv-00069-PMD-BM.
[Id.] Plaintiff contends the § 1983 action
involved evidence from two unrelated criminal actions for
which he had been found guilty: one for armed robbery at
criminal action number 2004-GS-23-7756, and one for murder at
criminal action number 2005-GS-23-4646. [Id. at 10.]
According to Plaintiff, both of those cases were in their
direct appeal stages in the South Carolina Court of Appeals
when Plaintiff commenced his § 1983 action.
[Id.] Plaintiff contends that Judge Marchant issued
a Report and Recommendation in the action at case number
0:08-cv-00069-PMD-BM, in which he misinterpreted
Plaintiff's evidence. [Id. at 10-11.] Plaintiff
contends that Judge Marchant committed grave and serious
error and Plaintiff has attempted to have Judge Marchant
correct that error multiple times, but to no avail.
[Id. at 11.] Plaintiff's § 1983 action at
case number 0:08-cv-00069-PMD-BM was dismissed without
prejudice, and Plaintiff attempted to re-file the case under
the same case number, but his motion was denied.
[Id. at 11-12.] Plaintiff contends that, because
Judge Marchant's Report and Recommendation was derived
from “his mistakenly [ ] combining two cases which the
Court records . . . incontrovertibly show to be independent
of each other, ” Plaintiff has been denied “the
fair opportunity to be heard in a meaningful sense.”
[Id. at 12.] According to Plaintiff, Judge
Marchant's deliberate failure to properly resolve the
matter in Plaintiff's favor shows that Judge
Marchant's Report and Recommendation was derived from his
own personal wishes or prejudices in violation of the Fifth
and Fourteenth Amendments. [Id.] Plaintiff contends
that, but for Judge Marchant's Report and Recommendation
denying him relief, he would have recovered damages in the
amount of twenty-five million dollars. [Id. at 13.]
Plaintiff now requests “the relief required by
law.” [Id. at 15.]
Court takes judicial notice of Plaintiff's prior §
1983 action at case number 0:08-cv-00069-PMD-BM. Judge
Marchant issued a Report and Recommendation in that case on
February 13, 2018, recommending that the case be dismissed
without prejudice and without issuance and service of
process. Mills v. Greenville Cty., No.
0:08-cv-00069-PMD-BM, Doc. 20 at *10 (D.S.C. Feb. 13, 2008).
Among other things, Judge Marchant concluded that
Plaintiff's claims in that case were barred by Heck
v. Humphrey, 512 U.S. 477 (1994), that the Court should
also abstain from hearing the claims under Younger v.
Harris, 401 U.S. 37, 43-44 (1971), and that the
Defendants named in the action were either entitled to
immunity, not state actors, or not persons subject to suit
under § 1983, and therefore were each entitled to
dismissal. [Id. at 5-10.] Plaintiff filed objections
to Judge Marchant's Report and Recommendation, but, on
April 15, 2008, the Honorable Patrick Michael Duffy overruled
the objections and adopted the Report and Recommendation,
dismissing the action without prejudice. Mills v.
Greenville Cty., No. 0:08-cv-00069-PMD-BM, Doc. 33 at
*10 (D.S.C. Apr. 15, 2008). The Court notes that, while
Plaintiff unsuccessfully filed a motion to reopen case number
0:08-cv-69-PMD-BM based on Judge Marchant's alleged
error, he did not file an appeal or otherwise attempt to
correct the alleged error.
established local procedure in this judicial district, a
careful review has been made of Plaintiff's pro se
Complaint filed in this case. Plaintiff filed this action
pursuant to 28 U.S.C. § 1915, the in forma pauperis
statute, which 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 he “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 would
still be 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. §
Plaintiff is a pro se litigant, his 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 a
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 complaint to include
claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or
construct a 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).
action should be dismissed with prejudice.
action should be dismissed with prejudice because it is
frivolous as it is barred by the doctrine of judicial
immunity. Judge Marchant, who is the only named Defendant in
this action, is a United States Magistrate Judge. The law is
well settled that judges have absolute immunity from claims
for damages arising out of their judicial actions unless they
have acted in the complete absence of all jurisdiction.
See Mireles v. Waco, 502 U.S. 9, 11-12 (1991);
Stump v. Sparkman, 435 U.S. 349, 356-57 (1978);
see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir.
1985) (explaining that, even if a challenged judicial act was
unauthorized by law, the judge still has immunity from a suit
seeking damages). Whether an act is judicial or non-judicial
relates to the nature of the act, such as whether it is a
function normally performed by a judge and whether the
parties dealt with the judge in his judicial capacity.
Mireles, 502 U.S. at 12. Immunity applies even when
the judge's acts were in error, malicious, or in excess
of his authority. Id. at 12-13. Immunity presents a
threshold question. See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Absolute immunity is “an
immunity from suit rather than a mere defense to
liability.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) (emphasis in original).
Plaintiff alleges that Judge Marchant violated his
constitutional rights by committing error in a Report and
Recommendation issued in case number 0:08-cv-00069-PMD-BM.
However, Plaintiff is complaining about Judge Marchant's
alleged erroneous judicial actions entered in his prior case
and he does not mention any pertinent nonjudicial actions.
Thus, because all of the alleged misconduct of Judge Marchant
arose out of his judicial actions, judicial immunity squarely
applies and should bar this lawsuit against him. As noted
above, judicial immunity protects a judge from liability
based on even erroneous judicial acts. Plaintiff's
claims against Judge Marchant should be dismissed, with
prejudice, as frivolous pursuant to 28 U.S.C. § 1915(d)
because they are barred by absolute judicial immunity.
See Bey v. Jefferson, No. 2:17-cv-1007-RMG-MGB, 2017
WL 9250348, at *8 (D.S.C. Apr. 24, 2017) (recommending
summary dismissal of case against a judge, who was entitled
to immunity, with prejudice as frivolous), Report and
recommendation adopted by 2017 WL 1956979 (D.S.C. May
11, 2017); Rivers v. Goodstein, No.
2:18-cv-2032-RMG-MGB, 2018 WL 4658487, at *8 (D.S.C. Sept. 7,
2018) (recommending dismissal with prejudice because case was
frivolous as the defendant judge would have absolute judicial
immunity for her judicial actions), Report and
Recommendation adopted by 2018 WL 4656239 (D.S.C.
Sept. 27, 2018); Jackson v. Hargadon, No.
PJM-12-2622, 2012 WL 8466129, at *2 (D. Md. Sept. 11, 2012)
(“Because judicial immunity precludes Plaintiff's
recovery against [a judge], sua sponte dismissal of
Plaintiff's claim as legally frivolous is
appropriate.”), aff'd, 510 Fed.Appx. 270
(4th Cir. 2013); Clay v. Yates, 809 F.Supp. 417, 427
(E.D. Va. 1992) (dismissing claims as frivolous against a
judge based on judicial immunity), aff'd, 36
F.3d 1091 (4th Cir. 1994).
Court further notes that the present action is nearly
identical to a prior action filed with this Court against
Judge Marchant, in which Plaintiff asserted the same
allegations. See Mills v. U.S. Magistrate Judge Bristow
Marchant, No. 8:14-cv-3069-TMC, Doc. 1 (D.S.C. Aug. 1,
2014). That case was summarily dismissed with prejudice based
on judicial immunity. Accordingly, the undersigned finds that
the present case is malicious within the meaning of 28 U.S.C.
1915(g). Under certain circumstances, a court may dismiss a
“malicious” civil action. See 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b). Repetitive and
duplicative filings may rise to the level of maliciousness.
See Jones v. South Carolina, No. 3:02-cv-157-24BC,
2002 WL 32334394, at *1 (D.S.C. Sept. 17, 2002)
(“Plaintiff's history of repetitious and
duplicative filings indicates an intent to abuse the court
and the in forma pauperis process.”). Plaintiff's
claims in the instant lawsuit are virtually identical to his
previous lawsuit against Judge Marchant. In both cases,
Plaintiff has alleged that Judge Marchant's erroneous
rulings in another case violated his constitutional rights.
Accordingly, the instant lawsuit is repetitive and should be
considered a malicious civil action and dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). See Payne
v. Lucas, No. 6:12-cv-1347-DCN-KFM, 2012 WL 6761515, at
*3 (D.S.C. Nov. 26, 2012), Report and Recommendation
adopted by 2013 WL 41000 (D.S.C. Jan. 3, 2013)
(dismissing action as frivolous and malicious because the
plaintiff had filed prior duplicative actions and deeming the
dismissal a “strike” pursuant to 28 U.S.C. §
dismissal should ...