Petition for Writ of Certiorari — Robert William Wazney, Petitioner v. South Carolina

No.

IN THE SUPREME COURT

OF THE UNITED STATES

ROBERT WILLIAM WAZNEY,

Petitioner/

v.

JAMES C. CAMPBELL CLERK OF COURT,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

APPENDIX

ROBERT WILLIAM WAZNEY, Pro-se (forced)

990 Wisacky Hwy.

Bishopville, SC 29010

Indigent Petitioner

803-428-2800

TABLE OF CONTENTS

A

JUDGMENT of 4th Circuit COA

B

.OPINION _AND-ORDER-of - S. C. _District-Court

C

REPORT OF MAGISTRATE JUDGE

D

ORDER denying Petion for Rehearing

E

Complaint—WRIT OF SUPERVISORY CONTROL

F

Complaint—COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

G

PETITION FOR REHEARING REQUEST FOR EN BANC CONSIDERATION

H

OBJECTION TO ENTRY 17

FILED: May 29, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6084

(6:,18-cv-02610-HMH)

ROBERT WILLIAM WAZNEY

Plaintiff - Appellant

v.

STATE OF SOUTH CAROLINA

Defendant - Appellee

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6084

ROBERT WILLIAM WAZNEY,

Plaintiff - Appellant,

v.

STATE OF SOUTH CAROLINA,

Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at

Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:18-cv-02610-HMp)

Submitted: May 23, 2019

Decided: May 29, 2019

Before KING and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert William Wazney, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Robert William Wazney appeals the district court’s order accepting the

recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983

(2012) complaint.

We have reviewed the record and find no reversible error.

Accordingly, we affirm for the reasons stated by the district court. Wazney v. South

Carolina, No. 6.18-cv-02610-HMH (D.S.C. Nov. 20, 2018). We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

2

t>:i«-CV-U2blU-HMH

r'

Date Filed 11/20/18

Entry Number 22

Page 1 of 3

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■ ^

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Robert William Wazney,

Plaintiff,

)

)

)

C.A. No. 6:18-2610-HMH-KFM

)

vs.

)

)

James C. Campbell.

OPINION & ORDER

)

)

Defendant.

)

This matter is before the court with the Report and Recommendation of United States

Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C. § 636(b)(1) and Local

Civil Rule 73.02 of the District of South Carolina.1 Robert William Wazney (“Wazney”), a state

prisoner proceeding pro se, alleges a 42 U.S.C. § 1983 claim alleging that the Defendant James

C. Campbell, a clerk with the Sumter County Family Court, failed to file legal documents and

assessed substantial filing fees. In his Report and Recommendation, Magistrate Judge McDonald

recommends dismissing this action without prejudice and without issuance and service of

process. (R&R 4, ECF No. 17.)

Wazney filed objections to the Report and Recommendation. Objections to the Report

and Recommendation must be specific. Failure to file specific objections constitutes a waiver of

a party’s right to further judicial review, including appellate review, if the recommendation is

accepted by the district judge. Sec United States v. Schronce. 727 F.2d 91,94 & n.4 (4th Cir.

The recommendation has no presumptive weight, and the responsibility for making a

final determination remains with the United States District Court. See Mathews v. Weber. 423

U.S. 261,270-71 (1976). The court is charged with making a de novo determination of those

portions of the Report and Recommendation to which specific objection is made. The court may

accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge

or recommit the matter with instructions. 28 U.S.C. § 636(b)(1),

/

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Date Filed 11/20/18

Entry Number 22

Page 2 of 3

1984). In the absence of specific objections to the Report and Recommendation of the magistrate

judge, this court is not required to give any explanation for adopting the recommendation. See

Cambyj^Davis, 718 F.2d 198, 199 (4th Cir. 1983).

Upon review, the court finds that many of Wazney’s objections are non-specific,

unrelated to the dispositive portions of the magistrate judge’s Report and Recommendation, or

merely restate his claims. The court, however, was able to glean one specific objection. Wazney

objects to the magistrate judge’s finding that the Defendant is entitled to quasi-judicial immunity.

Wazney claims that the Defendant, in his role as a court clerk with the Sumter County Family

Court, refused to file certain documents and imposed substantial filing fees that have limited his

access to the courts. (Objs., generally, ECF No. 21.) This objection is without merit.

Clerks of court are afforded quasi-judicial immunity from suit on claims involving “tasks

so integral or intertwined with the judicial process that these persons are considered an arm of the

judicial officer who is immune.” Bush v, Rauch. 38 F.3d 842, 847 (6th Cir. 1994); Ross v.

Baron, No. 12-1272, 2012 WL 3590914, at *1 (4th Cir. Aug. 22, 2012) (unpublished) (“[A] court

clerk is generally entitled to quasi-judicial immunity.”). Filing documents and assessing filing

fees are integral to the judicial process. Wymore v. Green. No. 06-3395, 2007 WL 2340795, at

*3 (10th Cir. Aug. 17, 2007) (unpublished) (affirming district court’s grant of absolute

__quasi-judicial immunity to a state court clerk that allegedly refused to file the prisoner’s

documents); Martin v. Rush. No. 13-693, 2013 WL 2285948, at *5 (D.S.C. May 23, 2013)

(unpublished) (finding that quasi-judicial immunity applied to clerk who allegedly failed to

provide him with a hearing transcript despite request); Coleman v. Fountain. No. 3:17CV266,

2018 WL 2124091, at *3 (E.D. Va. May 8, 2018) (unpublished) (finding clerks immune from

2

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Date Filed 11/20/18

Entry Number 22

Page 3 of 3

i*

suit complaining about assessment of filing fees based on quasi-judicial immunity).

Accordingly, after review, the court finds that Wazney’s specific objection is without merit.

Therefore, after a thorough review of the magistrate judge’s Report and the record in this case,

the court adopts Magistrate Judge McDonald’s Report and Recommendation and incorporates it

herein by reference. Further, Wazney cannot cure the defects in his complaint by amendment.

Goode v. Cent. Va. Legal Aid Soc’v. Inc.. 807 F.3d 619, 623 (4th Cir. 2015). Therefore, the

court declines to afford leave to amend.

It is therefore

ORDERED that this action is dismissed without prejudice and without issuance and

service of process.

IT IS SO ORDERED.

s/Henry M. Herlong, Jr.

Senior United States District Judge

Greenville, South Carolina

November 20, 2018

NOTICE OF RIGHT TO APPEAL

Plaintiff is hereby notified that he has the right to appeal this order within thirty (30)

days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate

Procedure.

3

Date Filed 10/23/18

D.lO-CV-U^DlU-MMH

Entry Number 17

Page 1 of 5

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Robert William Wazney,

)

)

)

)

Petitioner,

vs.

Civil Action No. 6:18-2610-HIVIH-KFM

REPORT OF MAGISTRATE .llinrtF

)

)

)

)

James C. Campbell

Respondent.

)

The petitioner, proceeding pro se, has filed a “Writ of Supervisory Control”

which this court construes as a civil action brought pursuant to 42 U.S.C. § 1983 seeking

relief for violations of his constitutional rights. The petitioner is a state prisoner, and files this

action in forma pauperis under 28 U.S.C. § 1915. Pursuant to 28 U.S.C. 636(b)(1) and

District of South Carolina Local Civil Rule 73.02(B)(2)(e), this magistrate judge is authorized

to review all pretrial matters in such pro se cases and to submit findings and

recommendations to the District Court.

BACKGROUND

The petitioner filed this action on September 24, 2018.

He is currently

incarcerated at the South Carolina Department of Corrections’ Lee Correctional Institution

in Bishopville, South Carolina. By order filed on September 27, 2018, the petitioner was

advised that his case was not in proper form and was given instructions on how to bring it

into proper form so that this court could conduct initial review. The petitioner has complied

with the court’s order (docs. 1-6, 10).

RULE 60 MOTION

The petitioner moves pursuant to Rule 60(a) to correct an error in the caption

of the court’s September 27, 2018 order (doc. 12-3). The petitioner asserts that James C.

MfWtH C

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Entry Number 17

Page 2 of 5

Campbell, Clerk of Court1, should have been listed as the respondent, as he designated

in his initial pleading he entitled “Writ of Supervisory Control” (doc. 1). The undersigned had

considered this initial claim as one against the state, but the petitioner makes clear that he

intends to sue James C. Campbell, Clerk of Court, in his individual and official capacity.

Accordingly, the petitioner’s motion is GRANTED such that the caption of the September

27, 2018 will be modified to reflect the respondent as James C. Campbell and that all other

documents filed in this case will likewise be so captioned.

ALLEGATIONS

The petitioner names Campbell as the sole respondent in this action and identifies

him as the Clerk of Court (Id.). The petitioner indicates that he sues Campbell in his official

and individual capacities (Id. at 1). The petitioner alleges that the “Sumter County Family

Court has dismissed case No. 2015-DR-43-0046 which is intertwined with my misconviction,

and other collateral cases, where its Clerk, JAMES C. CAMPBELL committed un reasonable

actions involving reckless indifference with a pattern of abuse that resulted in a violation of

[his] rights" (Id.). He further alleges that Campbell “has repeatedly breached [his] duty to

perform the ministerial act of accepting technically sufficient papers which are pertinent to

issues in the cases and interposed substantial fees as a barrier to access to courts,

affecting the law of the cases, denying my opportunity to be heard, frustrating my claims,

preventing my challenge of conviction, affecting my substantial rights, causing injury and

harm to me” (Id. at 1). He claims the respondent’s actions have deprived the [state] court

of information and, as such, the [state] court has not ruled on many issues. As relief, he

seeks monetary damages; an order holding in abeyance the state court proceeding; a

change of venuer or to-have the Clerk removed, or both; and to vacate the-lower court'

judgment (Id. at 1-2).

1The undersigned observes that the petitioner names two defendants-James C. Campbell

and James C. Campbell, Clerk of Court. As these individuals are the same person onlv

James C. Campbell shall be identified in the caption of this matter.

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Entry Number 17

Page 3 of 5

STANDARD OF REVIEW

The petitioner 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 respondent who is immune from such relief.”

28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint lacks an

arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992).

As a pro se litigant, the petitioner’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

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 Soc. Sen/s., 901 F.2d 387 (4th Cir. 1990).

In order to state a claim upon which relief can be granted, the petitioner 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.

DISCUSSION

The instant action is subject to dismissal due to the petitioner’s failure to state

a claim upon which relief can be granted. As previously set forth, the petitioner named

Campbell as the sole respondent and identifies him as the Clerk of Court. County clerks

of court are part of the State of South Carolina’s unified judicial system. See S.C.

Const. Article V, § 24; §§ 14-1-40, 14-17-10, South Carolina Code of Laws (as

amended). It is well settled that clerks of court and other court support personnel are

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Entry Number 17

Page 4 of 5

entitled to immunity similar to judges when performing their quasi-judicial duties. See Jarvis

v. Chasanow, 448 Fed. App’x.406 (4th Cir. 2011); Stevens v. Spartanburg Cty. Prob.,

Parole, and Pardon Servs., C/A No. 6:09-795-HMH-WMC, 2010 WL 678953, at *7 (D.S.C.

Feb. 23, 2010). Absolute judicial immunity extends to persons other than judges when

performance of judicial acts or activities as official judicial aides are involved and is referred

to as quasi-judicial immunity. See Abebev. Propes, C.A. No. 0:11-1215-MBS-PJG, 2011

WL 2581385, *3 (D.S.C. June 3, 2011) (collecting cases), adopted by, 2011 WL 2600593

(D.S.C. June 29, 2011).

In the underlying action, all petitioner’s allegations against

Campbell appear to arise out of his performance of judicial acts or activities. As such, he

is entitled to quasi-judicial immunity and should be dismissed from this action.

The petitioner cannot cure the defects in his complaint by mere amendment.

See generally Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir.

2015); Domino Sugar Corp. v. Sugar Workers Local Union 392,10 F.3d 1064,1066 (4th Cir.

1993).

Accordingly, the undersigned recommends that the district court decline to

automatically give the petitioner leave to amend and dismiss this action without prejudice

and without issuance and service of process.

s/Kevin F. McDonald

United States Magistrate Judge

October 23, 2018

Greenville, South Carolina

The petitioner’s attention is directed to the important WARNING on the following

page.

4

FILED: July 29, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6084

(6:18-cv-02610-HMH)

ROBERT WILLIAM WAZNEY

Plaintiff - Appellant

v.

STATE OF SOUTH CAROLINA

Defendant - Appellee

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge King, Judge Richardson, and

Senior Judge Shedd.

For the Court

/s/ Patricia S. Connor. Clerk

Additional material

from this filing is

available in the

Clerk's Office.