Brown v. Newton

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

ANDERSON/GREENWOOD DIVISION

Tommy Dwayne Brown, ) C/A No. 8:24-cv-04219-BHH-KFM

)

Plaintiff, ) REPORT OF MAGISTRATE JUDGE

)

vs. )

)

Travis Newton, Dennis Bannister, )

South Carolina Judicial System, Mayor )

Elanor Dorn, )

)

Defendants.1 )

)

The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis, filed

this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights.

Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d)

(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed

under 42 U.S.C. § 1983 and submit findings and recommendations to the district court. The

plaintiff’s complaint was entered on the docket on July 31, 2024 (doc. 1). The case is

substantially in proper form for judicial screening. However, for the reasons that follow, it

is recommended that this matter be summarily dismissed.

ALLEGATIONS

The plaintiff, a pretrial detainee at the Anderson County Detention Center

(“the Detention Center”), seeks injunctive relief and money damages from the defendants

(docs. 1; 1-3). The plaintiff alleges that Travis Newton, Esquire, has not defended him

appropriately (doc. 1 at 1). The plaintiff contends that he paid Mr. Newton for a tire for his

daughter’s car and that Mr. Newton never checked the surveillance footage or the evidence

1 This caption has been updated to reflect the current parties to this action, as set

forth on the plaintiff’s complaint form (doc. 1-3).

and although the charge was dropped, the plaintiff had to pay his daughter $200 for the tire

(id.). The plaintiff also asserts that Mr. Newton convinced the plaintiff to hire him because

the system would work against the plaintiff, but Mr. Newton has given the plaintiff only bad

advice (like withdrawing his complaint against the allegedly corrupt Judge Bannister) (id. at

2). Mr. Newton’s secretary also told the plaintiff that the law signed by Governor McMaster

meant he could carry a gun, but he has still been arrested multiple times for unlawful carry

of a weapon (id.).

The plaintiff also alleges that his rights have been violated because the

Mexican cartel has been given immunity (doc. 1-3 at 1). The plaintiff’s right to a fair trial,

right to information, and right to be free of excessive force have also been violated (id.).

The plaintiff also alleges violations of his rights because he has not been recognized as a

vigilante who was acting because the City of Belton refused to (id. at 4). The plaintiff also

had to act as a vigilante because of the allegedly corrupt Judge Bannister (id. at 4, 5).

The plaintiff’s injuries include being incarcerated, mental damages, and

hardship (docs. 1 at 1; 1-3 at 6). For relief, the plaintiff seeks money damages, to have Mr.

Newton disbarred, to have Judge Bannister removed from the bench, and for judicial reform

(docs. 1 at 1; 1-3 at 6). Of note, the plaintiff’s complaint references an attachment that was

not provided to the court (see doc. 1-3 at 5).

STANDARD OF REVIEW

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). Further, the plaintiff is a prisoner under the definition of 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 the plaintiff had prepaid the

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full filing fee, this Court is charged with screening the 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, 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 (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).

This 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, 566 U.S. 356, 361 (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).

DISCUSSION

As noted above, the plaintiff filed the instant action pursuant to § 1983,

seeking damages and injunctive relief from the defendants. As outlined below, the

plaintiff’s complaint is subject to summary dismissal. As an initial matter, many of the

claims asserted in this action have also been asserted in other actions filed by the plaintiff

in this court (nine in total) – and in one of his prior cases, he has already been informed that

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his claims are subject to dismissal (and that some are frivolous in nature). See e.g., Brown

v. Anderson Cnty. Sheriff’s Dep’t, C/A No. 8:24-cv-04392-BHH-KFM, at doc. 12 (D.S.C.

Sept. 11, 2024) (noting that the plaintiff’s various claims were subject to summary dismissal

and providing the plaintiff the opportunity to amended his allegations to correct the

deficiencies noted in the order). Some of the duplicative claims have been addressed on

the merits in this matter; however, the plaintiff is informed that continuing to file duplicative

and numerous cases in this court may lead to the imposition of prefiling restrictions. See

Noonsab v. U.S. Dist. Ct. for the E. Dist. of N.C., C/A No. 5:16-CT-3112-FL, 2016 WL

9077878, at *2 (E.D.N.C. June 27, 2016) (warning a pro se plaintiff that unnecessary and

excessive filings impede judicial efficiency and the administration of justice).

South Carolina Judicial System

The South Carolina Judicial System is subject to dismissal because it is not

a person that may be sued pursuant to § 1983 (see docs. 1; 1-3). It is well settled that only

“persons” may act under color of state law; thus, a defendant in a § 1983 action must

qualify as a “person.” See Harden v. Green, 27 F. App’x 173, 178 (4th Cir. 2001). Further,

inanimate objects or groups of people, such as departments, buildings, facilities, and

grounds cannot act under color of state law. See also Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (holding that “neither a state nor its officials acting in their official

capacities are ‘persons’ under § 1983.”). The South Carolina Judicial System is not a

“person”; thus, it is subject to summary dismissal. See Nelson v. Lexington Cnty. Det. Ctr.,

C/A No. 8:10-cv-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that

a building – the detention center – is not amenable to suit under § 1983).

No Personal Allegations

The plaintiff’s complaint fails to make personal allegations of wrongdoing

against defendant Mayor Elanor Dorn (see docs. 1; 1-3). Indeed, it is unclear in what

capacity Mayor Dorn was involved in the plaintiff’s alleged constitutional deprivations.

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Although the plaintiff’s allegations must be liberally construed, the plaintiff must provide

more than general and conclusory statements to allege a plausible claim for relief. Adams

v. Rice, 40 F.3d 72, 74–75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995); see Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal

involvement”). As such, Mayor Dorn is entitled to summary dismissal.

Even construing the plaintiff’s complaint as asserting a claim for municipal

liability against Mayor Dorn (and presuming Mayor Dorn was a proper party for a municipal

liability claim), his claim still fails. As an initial matter, municipalities and other local

governing bodies are considered “persons” and may be sued under Section 1983. Monell

v. Dept. of Soc. Servs., 436 U.S. 658, 690–91 (1978). However, a county or city cannot be

held liable pursuant to respondeat superior principles. Iqbal, 556 U.S. at 676. “[N]ot every

deprivation of a constitutional right will lead to municipal liability. Only in cases where the

municipality causes the deprivation ‘through an official policy or custom’ will liability attach.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citing Carter v. Morris, 164 F.3d 215, 218

(4th Cir. 1999)). As the Court of Appeals for the Fourth Circuit has stated:

A policy or custom for which a municipality may be held liable

can arise in four ways: (1) through an express policy, such as

a written ordinance or regulation; (2) through the decisions of

a person with final policymaking authority; (3) through an

omission, such as a failure to properly train officers, that

“manifest [s] deliberate indifference to the rights of citizens”; or

(4) through a practice that is so “persistent and widespread” as

to constitute a “custom or usage with the force of law.”

Id. (quoting Carter, 164 F.3d at 217). Additionally, under Monell, municipal liability arises

“only where the constitutionally offensive actions of employees are taken in furtherance of

some municipal policy or custom.” Walker v. Prince George’s Cnty., Md., 575 F.3d 426,

431 (4th Cir. 2009) (internal quotation marks and citations omitted). Here, as outlined in

more detail below, the plaintiff has failed to allege any constitutionally offensive action by

an individual defendant. See Evans v. Chalmers, 703 F.3d 636, 654–55 (4th Cir. 2012)

(noting that when a plaintiff fails to state a § 1983 claim against individual officers, claims

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based upon supervisory and/or Monell liability also fail). As such, the plaintiff’s claims

against Mayor Dorn are subject to summary dismissal even if considered under Monell.

Judge Bannister

The plaintiff alleges that Judge Bannister is corrupt purportedly based on his

rulings in the plaintiff’s state criminal cases (docs. 1 at 2; 1-3 at 4). It is well-settled that

judges have absolute immunity from a claim for damages arising out of their judicial actions

unless they 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, 356–64 (1978); Chu v. Griffith,

771 F.2d 79, 81 (4th Cir. 1985) (explaining that 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. Absolute immunity is “an

immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S.

511, 526 (1985) (emphasis omitted). The allegations as to Judge Bannister concern his

judicial actions; as such, judicial immunity squarely applies and any claims against him

should be dismissed. As such, the plaintiff’s claims against Judge Bannister are subject to

summary dismissal.

Travis Newton, Esquire

The plaintiff’s assertions that Mr. Newton has not represented him well and

gave him bad advice when representing him (docs. 1 at 1–2; 1-3 at 6) are subject to

summary dismissal because Mr. Newton does not act under color of state law. It is well-

settled that “[a]nyone whose conduct is ‘fairly attributable to the state’ can be sued as a

state actor under § 1983.” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (internal citation

omitted). To determine whether state action is present, no single factor is determinative

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and the “totality of the circumstances” must be evaluated. See Goldstein v. Chestnut Ridge

Volunteer Fire Co., 218 F.3d 337, 341–43 (4th Cir. 2000). However, purely private conduct,

no matter how wrongful, is not actionable under 42 U.S.C. § 1983 and the United States

Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Mentavlos v.

Anderson, 249 F.3d 301, 310 (4th Cir. 2001).

The law is well-established that a privately-hired, pro bono, or appointed

defense counsel, such as Mr. Newton, is not a state actor for purposes of § 1983 claims

because defense counsel acts not on behalf of the state; rather, defense counsel “is the

State’s adversary.” Polk Cnty. v. Dodson, 454 U.S. 312, 322–23 & n.13 (1981); see

Mahaffey v. Sumter Cnty. Pub. Defender’s Corp., C/A No. 3:06-3557-SB, 2007 WL

3001675, at *4 (D.S.C. Oct. 9, 2007) (“[T]he Sumter County Public Defender’s Corp. did not

act under color of state law and is entitled to summary dismissal.”); see also Hall v. Quillen,

631 F.2d 1154, 1155–56 (4th Cir. 1980) (finding no state action under § 1983, even where

the plaintiff’s attorney was court-appointed). As such, Mr. Newton is subject to summary

dismissal.

Frivolous

Some of the plaintiff’s claims are subject to dismissal because they are

frivolous in nature. For example, the plaintiff’s assertions that the defendants are working

with and allowing the Mexican Cartel to sell drugs and have failed to recognize the plaintiff

as a lawful vigilante (docs. 1 at 1–2; 1-3 at 4, 6) are clearly frivolous in nature. Similarly, the

plaintiff’s allegations surrounding an incident with him, his daughter, and Mr. Newton

involving a tire, as well as assertions regarding representations made by Mr. Newton’s

secretary about the plaintiff’s entitlement to carry a weapon are likewise frivolous, meritless,

and fantastical in nature. It is well-settled that the court has the authority to dismiss claims

that are obviously “fantastic” or “delusional.” Adams, 40 F.3d at 74; Raiford v. FBI, C/A No.

1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), Report and

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Recommendation adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a

finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the

irrational or the wholly incredible”). In reviewing a complaint for frivolousness or malice, the

court looks to see whether the complaint raises an indisputably meritless legal theory or is

founded upon clearly baseless factual contentions, such as fantastic or delusional

scenarios. Harley v. United States, 349 F. Supp. 2d 980, 981 (M.D.N.C. 2004) (citing

Neitzke v. Williams, 490 U.S. 319 (1989)). The Court must accept all well-pled allegations

and review the complaint in a light most favorable to plaintiff. Mylan Labs., Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993).

Here, even when reviewed in a light most favorable to the plaintiff, the

amended complaint is comprised of factual allegations that are not credible, and which fail

to state a claim for relief. See Neal v. Duke Energy, No. 6:11-cv-1420-HFF-KFM, 2011 WL

5083181, at *4 (D.S.C. June 30, 2011), Report and Recommendation adopted by 2011 WL

5082193 (D.S.C. Oct. 26, 2011) (dismissing action upon finding plaintiff’s factual allegations

were frivolous, fanciful, and delusional where plaintiff claimed defendants clandestinely

placed a GPS device in her car while it was in the shop for repairs and that she was being

stalked by the defendants, noting the allegations were “made without any viable factual

supporting allegations and appears to be the product of paranoid fantasy”); Feurtado v.

McNair, No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that

frivolousness encompasses inarguable legal conclusions and fanciful factual allegations),

aff’d, 227 F. App’x 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008).

As outlined above, the plaintiff’s allegations that the defendants are working with the

Mexican cartel to sell drugs, that he was a lawful vigilante, that he had to pay for a tire for

his daughter twice because Mr. Newton did not investigate, and that Mr. Newton’s secretary

gave him bad information about his ability to lawfully carry a weapon, are clearly frivolous

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and lack a basis in the law. As such, the plaintiff’s claims in this action are also subject to

summary dismissal as frivolous.

RECOMMENDATION

The undersigned is of the opinion that the plaintiff cannot cure the defects

identified above by amending the complaint. Therefore, the undersigned recommends that

the district court dismiss this action without prejudice, without leave to amend, and without

issuance and service of process.2 See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022)

(published) (noting that “when a district court dismisses a complaint or all claims without

providing leave to amend . . . the order dismissing the complaint is final and appealable”).

The attention of the parties is directed to the important notice on the next page.

IT IS SO RECOMMENDED.

s/Kevin F. McDonald

United States Magistrate Judge

September 18, 2024

Greenville, South Carolina

2 The plaintiff is warned that if the United States District Judge assigned to this

matter adopts this report and recommendation, the dismissal of this action for failure to

state a claim could later be deemed a strike under the three-strikes rule. See Pitts v. South

Carolina, 65 F.4th 141 (4th Cir. 2023).

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this

Report and Recommendation with the District Judge. Objections must specifically identify

the portions of the Report and Recommendation to which objections are made and the

basis for such objections. “[I]n the absence of a timely filed objection, a district court need

not conduct a de novo review, but instead must only satisfy itself that there is no clear error

on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life

& Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory

committees note).

Specific written objections must be filed within fourteen (14) days of the date

of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil

Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

250 East North Street, Room 2300

Greenville, South Carolina 29601

Failure to timely file specific written objections to this Report and

Recommendation will result in waiver of the right to appeal from a judgment of the

District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.

Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v.

Schronce, 727 F.2d 91 (4th Cir. 1984).

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