Mills v. Greenville County

586 F. Supp. 2d 480, 2008 U.S. Dist. LEXIS 30724, 2008 WL 1766671

• Court: District Court, D. South Carolina
• Decided: April 15, 2008
• Docket: C.A. 0:08-69-PMD-BM
• Status: Published

Opinion

ORDER

PATRICK MICHAEL DUFFY, District Judge.

This matter is before the court upon the recommendation of the Magistrate Judge to dismiss the Plaintiffs’ above-captioned case without prejudice and without issuance and service of process. The record contains a Report and Recommendation (“R & R”) of a United States Magistrate Judge which was made in accordance with 28 U.S.C. § 636(b)(1)(B). 1 A dissatisfied party may object, in writing, to an R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). On February 25, 2008, Plaintiff filed timely objections 2 in response to the R & R.

BACKGROUND

Plaintiff John L. Mills (“Plaintiff’ or “Mills”) is an inmate with the South Car olina Department of Corrections (“SCDC”) serving a sentence of imprisonment for armed robbery at Lee Correctional Institution (“LCI”). Plaintiff and his mother, Plaintiff George Ann Mills, are proceeding pro se. On January 8, 2008, Plaintiffs filed this action pursuant to 42 U.S.C. § 1983. The “Statement of Claim” portion of Plaintiffs complaint reveals that this civil rights action arises out of the Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution. Plaintiffs allege that Mills was “framed” for armed robbery and murder arising out of an incident in March 2005 in which 13-year old Ernest Henry Whitaker was shot and killed during an alleged robbery of the child’s parents. 3 Plaintiff was convicted by a jury in March 2006 for armed robbery. Plaintiffs allege that Mills was “framed” because he is black, he had a prior criminal record, and was in the area when the incident occurred. 4 Plaintiffs further allege that the public defender ineffectively represented Mills and seek damages “for what they did to my son, also my family” (Compl. at 5) in the amount of $25,000,000.00. (Docket Entry 3.)

United States Magistrate Judge Bristow Marchant filed an R & R on February 13, 2008, recommending that this Court dismiss Plaintiffs Complaint without prejudice and without issuance and service of process. Following the Magistrate Judge’s R & R, Plaintiff filed two motions before the court, a “Motion to Go Forward” and “Motion to Remove Plaintiff George Ann Mills,” which have been incorporated and reviewed as objections to the R & R.

STANDARD OF REVIEW

I. Magistrate Judge’s Report & Recommendations

Magistrate Judges are empowered by statute to preside over pretrial matters on appointment by a district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. Where, as here, a Magistrate Judge is “assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confinement ... [t]he magistrate judge shall enter into the record a recommendation for disposition of the matter.” Fed. R.Civ.P. 72(b). The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 269, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976).

Under Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), a District Court evaluating a Magistrate Judge’s recommendation is permitted to adopt those portions of the recommendation to which no “specific, written objection” is made, as long as those sections are not clearly erroneous or contrary to law. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, where a party makes a specific, written objection within ten days of being served with a copy of the report, 5 the district court is required to make a de novo determination regarding those parts of the report, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The court has reviewed the entire record, the R & R, and Plaintiffs objections. The Magistrate Judge fairly and accurately summarized the facts in this case and this Court incorporates the R & R’s recitation of the facts by specific reference.

ANALYSIS

I. Standing of Plaintiff George Ann Mills

Plaintiffs first objection/motion, the “Motion to remove George Ann Mills,” is granted. In his R & R, the Magistrate Judge found co-plaintiff George Ann Mills, proceeding pro se, did not have standing to bring an action on her son’s behalf. (R & R at 4.) While Plaintiffs are pro se litigants and their pleadings are afforded liberal construction, the Magistrate Judge correctly found that George Ann Mills lacked the appropriate standing to bring an action on behalf of her son. Even if George Ann Mills filled the role of guardian ad litem or “next friend” pursuant to Federal Rule of Civil Procedure 17(c), she must obtain legal counsel to bring her son’s claims before this Court. Furthermore, there is no indication that Mills cannot proceed for himself, since he is named as a co-plaintiff, signed the complaint, submitted his own motion to proceed in forma pauperis, and has now filed a lengthy narrative in response to the R & R. Therefore, Plaintiff Mills’s “Motion to Remove Plaintiff George Ann Mills,” timely filed on February 25, 2008, appropriately dismisses George Ann Mills as a party plaintiff, and the motion is thereby granted.

II. Abstention Under Younger

In his Complaint, Plaintiff John L. Mills requests that this court re-open and re-investigate the armed robbery and murder investigations at issue, thereby seeking to have Mills’s convictions and/or charges dismissed. (Compl. at 5). However, Plaintiff is represented by Appellate Defender Kathrine H. Hudgins, Esquire and has a direct criminal appeal of his armed robbery conviction pending in the South Carolina Court of Appeals. See Attachment 2 at pp. 1-11 (state court record). According to Plaintiffs own motion/objection entitled “Motion to Go Forward”, filed February 25, 2008, Plaintiff admittedly states that “Both Arm Robbery and Murder case is in appeal court.” (Obj. At 25). 6

As held by the Supreme Court in Younger v. Harris, a federal court should not equitably interfere with state criminal proceedings except in the most narrow and extraordinary of circumstances. 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.1996). As such, a federal court may not award injunctive relief that would affect pending state criminal proceedings, absent extraordinary circumstances. The Fourth Circuit has, from Younger and its progeny, set forth the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in state proceedings.” Martin Marietta Corp. v. Maryland Comm’n on Human Relations, 38 F.3d 1392, 1396 (4th Cir.1994); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir.1989); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (holding that Younger abstention must apply until state appellate judicial remedies are exhausted). The Fourth Circuit has also expounded that “ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Gilliam, 75 F.3d at 903.

In this case, Plaintiff not only has the right to appeal, but has exercised that right in the South Carolina Court of Appeals, by appealing his armed robbery conviction. In his objections to the R & R, Plaintiff generally states that his allegations demonstrate extraordinary circumstances to allow intervention by the this court. However, Plaintiffs bare assertion of having been framed does not demonstrate extraordinary circumstances which would permit this court to interfere with Plaintiffs appeal. Plaintiff has adequate opportunity to raise his federal constitutional claims before the state appellate court. Accordingly, this Court shall refrain from proceeding with Plaintiff Mills’s § 1983 claim.

III. Heck v. Humphrey on Invalidating Convictions

Plaintiff seeks monetary damages in the amount of $25,000,000.00, based on the defendants’ “framing” him. (Docket Entry 3.) The Supreme Court has held that in order to recover damages for imprisonment in violation of the constitution, the imprisonment must first successfully be challenged. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that 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 under 28 U.S.C. § 2254.). A prisoner’s damages claim that would “necessarily require [him] to prove the unlawfulness of his conviction or confinement” cannot be brought under § 1983. Id. Because a claim for damages that does not bear a relationship to a conviction or sentence that has not been invalidated is not cognizable under § 1983, Plaintiff may not recover monetary damages until the imprisonment is first successfully challenged.

Most importantly, the Supreme Court held in Heck that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff(s) would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiffs) can demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at 487, 114 S.Ct. 2364. According to Plaintiffs “Motion to Go Forward,” both the armed robbery and murder cases are currently on appeal. (Obj. at 25.) On appeal, a favorable determination of the merits of Plaintiffs § 1983 claims would require a finding that he was improperly convicted. Therefore, because the appeal(s) are still pending and have not invalidated Plaintiffs convictions, the complaint must be dismissed.

As aptly noted by the Magistrate Judge in the R & R, if Plaintiffs direct appeal is unsuccessful, he still has the opportunity to file an application for post-conviction relief (“PCR”). See S.C.Code Ann. § 17-27-10 et seq. (1976). Furthermore, if Plaintiffs application for PCR is denied or dismissed, he can then file an “appeal” (petition for writ of certiorari) in that PCR case. See S.C.Code Ann. § 17-27-100 (1976). If Plaintiff seeks habeas relief in federal court, he must file an action pursuant to 28 U.S.C. § 2254. Heck, 512 U.S. at 481, 114 S.Ct. 2364 (“habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release.”) Accordingly, Plaintiffs claims should be dismissed without prejudice pursuant to Heck.

IV. Immunity

Even if this court was otherwise entitled to proceed on Plaintiffs § 1983 claim, the Solicitors sued in this action are entitled to summary dismissal. In his R & R, the Magistrate Judge found that all claims should be dismissed because Plaintiff fails to name a defendant subject to suit under 42 U.S.C. § 1983. The Solicitors who handled Mills’s criminal proceedings are entitled to summary dismissal because those claims seek monetary relief from defendants who are immune from such relief. 28 U.S.C. § 1915A(b) (2).

Prosecutors have absolute immunity for activities in or connected with judicial proceedings, including a criminal trial. See Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (stating prosecutors, when acting within the scope of their duties, have absolute immunity from damages liability under § 1983 motions).

In his objections to the R & R, Plaintiff alleges that prosecutor Steinberg falsified evidence by instructing the detec-fives to use false information. Additionally, Plaintiff contends that Prosecutor Steinberg committed perjury and induced witnesses to commit perjury as well, thus removing the shield of immunity granted by the 42 U.S.C. § 1983. However, both solicitors are entitled to absolute immunity in their roles. See Weller v. Department of Social Services for City of Baltimore, 901 F.2d 387 (4th Cir.1990) (holding where Plaintiff alleges withholding or falsifying evidence by a solicitor, “even if such claims are true, they do not state a claim for damages under § 1983.”). Accordingly, Plaintiffs claims against Defendants Aerial and Steinberg fail as a matter of law.

V. Under Color of State Law & Persons Subject to Suit

To state a claim under 42 U.S.C. § 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). A lawyer, whether he/she is privately retained, court-appointed, or a public defender, does not act under the color of state law, which is a judicial prerequisite to any action under 42 U.S.C. § 1983. Therefore, because Plaintiffs public defender, Patrick Mangrum, did not act under the color of state law, and because Plaintiff has failed to state a claim against him under 42 U.S.C. § 1983, he is subject to dismissal as a party defendant.

Similarly, defendants Greenville County and the City of Greenville are subject to dismissal because Plaintiff does not implicate any policy or custom of those entities in his complaint. See Monell v. Dept. of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding that a county may be sued as a “person” under § 1983 only where the alleged constitutional violation executes or implements a governmental policy or custom). In this case, Plaintiff Mills does not implicate a policy or custom practiced by the County of Greenville or the City of Greenville in denying his § 1983 constitutional rights. 7

Finally, in his objections to the R & R, Plaintiff offers voluminous allegations of conspiracy, perjury, and prosecutorial misconduct among the police and the solicitors, but fails to demonstrate that Solicitors Aerail or Steinberg acted outside the scope of their duty. Furthermore, Plaintiff alleges a claim of conspiracy to “frame” and convict Plaintiff. (Obj. at 22). 8 The documents referenced by Plaintiffs objections do not support a theory of conspiracy. Plaintiffs mere conclusory allegations of conspiracy are not sufficient to assert a claim of conspiracy against Defendants Aerail or Steinberg. See Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985). Accordingly, defendants Greenville County, the City of Greenville, and Patrick Mangrum are subject to summary dismissal as party defendants.

CONCLUSION

It is, therefore ORDERED, for the foregoing reasons that Plaintiffs Motion to Remove Plaintiff George Ann Mills be GRANTED; and Plaintiffs action for civil rights relief pursuant to 42 U.S.C. § 1983 be DISMISSED without prejudice and without issuance and service of process.

AND IT IS SO ORDERED.

Report and Recommendation

BRISTOW MARCHANT, United States Magistrate Judge.

Introduction

Co-plaintiffs, George Ann Mills and John L. Mills, both proceeding pro se, bring this action pursuant to 42 U.S.C. § 1983. Co-plaintiff John L. Mills is an inmate at the Lee Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC), while co-plaintiff George Ann Mills is his mother and a non-prisoner.

As plaintiff John L. Mills is a prisoner, a careful review has been made with regard to plaintiff John L. Mills’ pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915A, the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134,110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983). Title 28 U.S.C. § 1915A (a) requires an initial review of a “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”

Further, even though the full filing fee has been paid, the pro se and non-prisoner George Ann Mills’ claims are also subject to an initial sua sponte review by the Court pursuant to the Court’s inherent authority to ensure that a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-364 (2d Cir.2000) (“District Court’s ... are ... capable of determining when an action is frivolous ... [and] ... may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee.... Indeed, as courts of first instance, district courts are especially likely to be exposed to frivolous actions, and thus have an even greater need for inherent authority to dismiss such actions quickly in order to preserve scarce judicial resources”); cf. Clark v. United States, 74 Fed.Appx. 561 (6th Cir.2003); Conner v. Greef, No. 03-5986, 2004 WL 898866, at *1 (6th Cir. April 26, 2004); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.1999), cert. denied, 528 U.S. 1198, 120 S.Ct. 1263, 146 L.Ed.2d 118 (2000); Hagans v. Lavine, 415 U.S. 528, 536-537, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Cummings v. Giuliani, No. 00 Civ. 6634 SAS, 2000 WL 1597868 (S.D.N.Y. 2000) (finding that where a non-prisoner pro se plaintiff paid the filing fee to bring a civil action, the action was subject to dismissal with prejudice because it presented no arguably meritorious claim); Rolle v. Berkowitz, No. 03 Civ. 7120 DAB RLE, 2004 WL 287678 (S.D.N.Y.2004) (finding that it was appropriate to dismiss with prejudice sua sponte a fee-paying pro se plaintiffs action because the court determined that the claims presented no arguably meritorious issue to consider); Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 307, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (mentioning in dicta that “[statutory provision may simply codify existing rights or powers”. Section 1915(d), for example, authorizes courts to dismiss a “frivolous or malicious” action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Pillay v. INS, 45 F.3d 14, 16 (2nd Cir.1995) (noting that where a pro se party filed an appeal and paid the filing fee, 1915(d) was not applicable but that “we have inherent authority to dismiss an appeal as frivolous.”).

Additionally, while this Court is required to liberally construe pro se documents; Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); holding them to a less stringent standard than those drafted by attorneys; Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (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 currently cognizable in a federal district court. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir.1990). Such is the case here, and this case is therefore subject to summary dismissal by this Court.

Factual Background

Plaintiffs allege that John L. Mills was improperly convicted or “framed” in the Greenville County Court of General Sessions for armed robbery and murder and that his constitutional rights were violated. Liberally construed, the plaintiffs seek monetary damages. Plaintiffs further request that this Court order that the two cases for armed robbery and murder be re-opened, investigated, and that the charges against John L. Mills be dismissed.

The Complaint and exhibits reveal that the armed robbery and murder charges arose out of an incident in March 2005, where a 13-year old boy, Ernest Henry Whitaker, was killed by a gunshot during an alleged robbery of the child’s parents. 1 The record reflects that John L. Mills was convicted by a jury in March 2006 in the Greenville County Court of General Sessions for armed robbery. Although Plaintiffs allege that he was also convicted of murder, the records provided to the Court only indicate that he is scheduled to be tried on this charge. Plaintiffs allege that John L. Mills was “framed” because he is black, was in the area when the incident happened, and had a criminal record. They allege that the public defender attorney for John L. Mills did nothing beneficial during his representation, and that in fact the evidence shows that Pamela Whitaker, the mother of the deceased child, shot and killed her own son. Plaintiffs seek damages in the complaint: “I want to pay for what they did to my son, also my family.” (Compl. at p. 5). Additionally, on the civil cover sheet, a demand is made for $25,000,000.00. (Docket Entry 3).

Plaintiffs’ exhibits also show that John L. Mills has a direct criminal appeal pending before the S.C. Court of Appeals for the armed robbery conviction, and that he is represented by Kathrine H. Hudgins, Esquire, Appellate Defender. See Attachment 2 at pp. 1-11 (state court record). The undersigned cannot glean from the record any facts relating to a murder conviction, including the date of any such con-vietion or whether a direct appeal is pending.

Lack of Standing.

First, it is readily apparent that co-plaintiff George Ann Mills, proceeding pro se, does not have standing to bring this action on her son’s behalf. Even if John L. Mills needs George Ann Mills to act as his guardian ad litem or “next friend” pursuant to Federal Rule of Civil Procedure 17(c), 2 she still must obtain legal counsel to bring her son’s legal claims before this Court. See Myers v. Loudoun Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir.2005) (finding that a non-attorney parent may not litigate the claims of their minor children in federal court, even where Virginia law permits the parent to assert the children’s claims). See also Oxendine v. Williams, 509 F.2d 1405, 1407 & n. * (4th Cir.1975) (a pro se prisoner unassisted by counsel cannot be an advocate for others in a class action); Frank Krasner Enter., Ltd. v. Montgomery Co., Md., 401 F.3d 230, 234-236 & nn. 6-9 (4th Cir.2005) (collecting cases on standing); Inmates v. Owens, 561 F.2d 560, 562-563 (4th Cir.1977) (one pro se inmate does not have standing to sue on behalf of another inmate).

Further, even though co-plaintiff George Ann Mills demands monetary compensation for her family’s injuries (which likely includes her own injuries), the alleged constitutional rights that were allegedly violated belong to her son, 3 and do not relate to any action or inaction by the defendants that was done to her in violation of her federal or constitutional rights. Accord ingly, co-plaintiff George Ann Mills’ claims should be dismissed in their entirety for lack of Article III standing, and she should be dismissed as a party plaintiff.

Younger abstention.

Plaintiffs request that this Court reopen the South Carolina armed robbery and murder investigations against John L. Mills, so that those charges may be re-investigated. They also seek to have the convictions and/or charges dismissed. (Compl. at p. 5). However, as noted, plaintiffs’ exhibits show that John L. Mills has direct criminal appeal pending before the S.C. Court of Appeals for the armed robbery conviction, in which he is represented by Kathrine H. Hudgins, Esquire, Appellate Defender. See Attachment 2 at pp. 1-11 (state court record). There is no indication in plaintiffs’ exhibits as to whether John L. Mills has filed a direct appeal for a murder conviction, nor whether John L. Mills has filed a post-conviction relief (PCR) action related to either conviction. 4

A federal court may not award injunc-tive relief that would affect pending state criminal proceedings absent extraordinary circumstances. In Younger v. Harris, the Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.1996). The Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Maryland Comm’n on Human Relations, 38 F.3d 1392, 1396 (4th Cir.1994) (citing Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). See also Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (holding that Younger abstention must apply while state appellate judicial remedies are exhausted).

The second criteria has been addressed by the Supreme Court: “[T]he States’ interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). The Supreme Court also discussed the third criteria in noting “that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.’ ” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.1996) (quoting Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975)). In this case, co-plaintiff John L. Mills has a direct appeal for his armed robbery conviction pending in the South Carolina Court of Appeals, and he can therefore raise his federal constitutional claims in those state court proceedings. Hence, this Court should abstain from proceeding with plaintiffs’ § 1983 action.

Heck v. Humphrey.

Liberally construed, the plaintiffs seek monetary damages for the harm done to John L. Mills, George Ann Mills, and their family based upon the defendants “framing” of John L. Mills. However, the complaint and exhibits demonstrate that John L. Mills’ criminal convictions for armed robbery (or murder) have not been invalidated. The Supreme Court has held that in order to recover damages for imprisonment in violation of the constitution, the imprisonment must first be successfully challenged. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

We hold that, in order to 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 bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

Id., 512 U.S. at 486-87,114 S.Ct. 2364.

The Supreme Court further held that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff(s) would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiffs) can demonstrate that the conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364.

Here, a favorable determination on the merits of plaintiffs’ claims in this § 1983 action would require a finding that John L. Mills was improperly convicted. Additionally, the plaintiffs have not demonstrated that John L. Mills has successfully challenged the lawfulness of his confinement. 5 Therefore, plaintiffs’ claims should be dismissed, without prejudice, under Heck. See Benson v. New Jersey State Parole Bd., 947 F.Supp. 827, 830 & n. 3 (D.N.J.1996) (following Heck v. Humphrey, “[bjecause a prisoner’s § 1983 cause of action will not have arisen, there need be no concern that it might be barred by the relevant statute of limitations.”).

Immunity of defendants.

Even if this case were otherwise entitled to proceed, co-plaintiff John L. Mills’ claims against the Solicitors who handled his criminal proceedings are subject to summary dismissal because those claims seek monetary relief from defendants who are immune from such relief. 28 U.S.C. § 1915A(b)(2). Prosecutors, including defendants Ariail and Steinberg, have absolute immunity for activities in or connected with judicial proceedings, such as a criminal trial, bond hearings, bail hearings, grand jury proceedings, and pre-trial “motions” hearings. See Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); and Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). See also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”). Moreover, co-plaintiff George Ann Mills’ claims against defendants Ariail and Steinberg should be dismissed because they are frivolous claims due to those defendants having absolute immunity. Cf. Rolle v. Berkowitz, No. 03 Civ. 7120 DAB RLE, 2004 WL 287678 (S.D.N.Y.2004) (finding that it was appropriate to dismiss with prejudice sua sponte a fee-paying pro se plaintiffs action because the court determined that the claims presented no arguably meritorious issue to consider).

Feb. 13, 2008.

Therefore, these defendants are entitled to dismissal even if the Court determines plaintiffs’ case should go forward.

Under color of state law.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United Sates 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). An attorney, whether retained, court-appointed, or a public defender, does not act under color of state law, which is a jurisdictional prerequisite for any civil action brought under 42 U.S.C. § 1983. See Deas v. Potts, 547 F.2d 800 (4th Cir.1976) (private attorney); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir.1980) (court-appointed attorney); Polk County v. Dodson, 454 U.S. 312, 317-324 & nn. 8-16, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (public defender).

Therefore, even if this case were to otherwise proceed, because John L. Mills’ public defender, Patrick Mangrum, did not act under color of state law, plaintiffs have failed to state a claim against him under 42 U.S.C. § 1983, and he is entitled to be dismissal as a party defendant.

“Persons” subject to suit.

Finally, defendants Greenville County and the City of Greenville are entitled to dismissal because plaintiffs do not complain about any policy or custom of those entities. See Monell v. Dept. of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (a county can be sued as a “person” under § 1983 when the alleged unconstitutional action implements or executes governmental policy or custom). Accordingly, defendants Greenville County and City of Greenville should be dismissed as party defendants.

Recommendation

Accordingly, it is recommended that the Court dismiss the complaint in the above-captioned case without prejudice and without issuance and service of process. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir.1990); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 654-55 (4th Cir.2006).

1 . Pursuant to the provisions of Title 28, United States Code, § 636(b)(1), and Local Rule 73.02(B)(2)(e), D.S.C., the Magistrate Judge is authorized to review all pretrial proceedings involving litigation by individuals proceeding pro se, and submit findings and recommendations to this Court.

2 . Plaintiff filed a "Motion to go forward” and “Motion to remove Plaintiff George Ann Mills.” Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Loe v. Armistead, 582 F.2d 1291 (4th Cir.1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir.1978). These motions have been reviewed in a light most favorable to the Plaintiff and are thereby considered for these purposes as timely objections to the R & R.

3 . The record shows that the child was shot while inside the automobile driven by his parents to a location in order to purchase drugs.

4 . Additionally, Plaintiff alleges that the evidence suggests that Pamela Whitaker, mother of the deceased who was present in the car at the time of the incident, shot and killed her own son. Plaintiff bases this claim on evidence contained in police reports, medical reports, eyewitness testimony, and his own beliefs.

5 .Plaintiff filed a voluminous narrative which has been given liberal construction by this court. Much of the narrative gives an account of the details of the incident giving rise to Mills's armed robbery conviction, as well as supplemental information by the Plaintiff based upon his own knowledge. Additionally, Plaintiff recounts portions of the court transcript, as well as portions of the autopsy report and the detectives’ reports. Very few of these details and arguments, however, are responsive with adequate specificity to the Magistrate Judge's findings of facts and conclusions of law as incorporated in the R & R.

6 . According to the R & R, there is some confusion as to whether Plaintiff has filed a direct appeal for a murder conviction, and whether Plaintiff has filed for post-conviction relief (PCR) action on either conviction. However, because Mills' direct appeal of the armed robbery conviction is pending, the Magistrate Judge correctly noted that it would be premature for him to file for PCR at this time.

7 . Specifically, Plaintiff bases the majority of his objections on his belief that he was arrested on an invalid warrant. However, Plaintiff fails to prove that the County of Greenville or City of Greenville had a policy of serving invalid warrants pursuant to the requirements of 42 U.S.C.A. § 1983. See Mitchell v. Aluisi, 872 F.2d 577 (4th Cir.1989) (holding that where there is no evidence of a policy that the county serves invalid warrants, “by definition, therefore, the 'challenged action' cannot have been taken pursuant to it.”); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).

8 . Plaintiff states, “Det. Smith ... for some reason tampered with evidence and witnesses/eye witnesses to make it look as if John L. Mills was the killer. So Smith and Stein-berg got together and plotted. They used the media and mislead the jury & Grand Jury into believing that John L. Mills committed the crime of murder.” (Obj. at 22).

1 . The exhibits reveal that the child victim was inside an automobile driven by his parents to a location to purchase drugs.

2 . There is no evidence that John L. Mills cannot bring his own claims in a lawsuit. He is named as a co-plaintiff, he signed the complaint, and submitted his own motion to proceed in forma pauperis.

3 .George Ann Mills alleges that the defendants violated her son’s rights under the "Fourth, Fifth, Sixth, Eight (sic), Ninth, and Fourteenth Amendment of the United State Constitution.”

4 . Since John L. Mills' direct appeal is pending for the armed robbery conviction, it would be premature for him to file a PCR action related to that conviction at this time.

5 . If John L. Mills' direct appeal is unsuccessful, he can file an application for post-conviction relief. See S.C.Code Ann. § 17-27-10 et seg. (1976). If his application for post-conviction relief is denied or dismissed by a Court of Common Pleas, he can then file an “appeal” (petition for writ of certiorari) in that post-conviction case. See S.C.Code Ann. § 17-27-100 (1976); Knight v. State, 284 S.C. 138, 325 S.E.2d 535 (1985). If John L. Mills seeks habeas relief in federal court, he must file an action pursuant to 28 U.S.C. § 2254.