Phillips v. Singletary, Civ. A. No. 72-109.

• Decision Date: 13 October 1972
• Docket Number: Civ. A. No. 72-109.
• Citation: 350 F. Supp. 297
• Court: U.S. District Court — District of South Carolina
• Parties: Cecil C. PHILLIPS, Plaintiff, v. Clarence E. SINGLETARY, Judge, et al., Defendants.

350 F. Supp. 297

Cecil C. PHILLIPS, Plaintiff, v. Clarence E. SINGLETARY, Judge, et al., Defendants.

Civ. A. No. 72-109.

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

October 13, 1972.

COPYRIGHT MATERIAL OMITTED

G. Simms McDowell, III, Charleston, S. C., for plaintiff.

Joseph C. Coleman, Asst. Atty. Gen., Columbia, S. C., William Jerry Fedder, Seneca, S. C., Lowell W. Ross, Howard G. Petit, Jr., Walhalla, S. C., H. Grady Kirven, Anderson, S. C., for defendants.

ORDER

BLATT, District Judge.

This matter comes before the court upon the respective defendants' motions to dismiss plaintiff's complaint which was filed on January 24, 1972. This action must be construed as one cognizable, if at all, under 42 U.S.C. § 1983 and/or § 1985(2). The plaintiff was charged with the crime of rape, pled guilty to this charge, and was sentenced in 1965 for a term of 25 years, which sentence he is presently serving. The complaint seeks money damages by charging a general conspiracy among the named defendants to deprive plaintiff of his constitutional rights. The complaint also charges the individual defendants with individual deprivations of plaintiff's rights.

Following their respective answers to the complaint, the defendants each moved for summary judgment on the ground that the action was barred by the six-year South Carolina Statute of Limitations (Sections 10-141 and 10-143 of the South Carolina Code of Laws). This court declined to dismiss this action on that procedural ground, citing Section 10-104 of the South Carolina Code of Laws:

"§ 10-104. Exceptions as to persons under disability.—If a person entitled to bring an action mentioned in article 3 of this chapter, except for a penalty or forfeiture or against a sheriff or other officer for an escape, be at the time the cause of action accrued either: . . .

(3) Imprisoned on a criminal or civil charge or in execution under the sentence of a criminal court for a less term than his natural life;

The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended:

(1) More than five years by any such disability, except infancy; nor (2) In any case longer than one year after the disability ceases."

This court felt that section made inappropriate the defense raised by the defendants, and by Order dated April 26, 1972, directed that counsel be appointed to assist plaintiff in this matter.

Following appointment of G. Simms McDowell, III, Esquire, as counsel for the plaintiff, a hearing was held in Charleston, South Carolina, on August 10, 1972. At that hearing, the respective defendants interposed various other defenses as will hereinafter appear more fully. At the conclusion of the hearing, this court directed the parties to submit further memoranda of law on the legal questions left unresolved at the hearing and requested counsel for the plaintiff to consult further with the plaintiff and if he deemed it advisable, amend the complaint or bring to the court's attention any factual base for this action that was not developed at the hearing. The issues having been joined and further evidentiary hearings not deemed necessary, this court grants each defendants' motion to dismiss for the reasons hereinafter set forth.

In his complaint, the plaintiff alleges that the individual defendants conspired against him by allowing him to tender a guilty plea when they knew he was under the influence of drugs. He also alleges individual acts of abetment in furtherance of this conspiratorial scheme. The defendant Clarence Singletary, Circuit Judge for the Ninth Judicial Circuit of South Carolina, has moved to dismiss this action because he is immune from such suit in that he was at all times stated in the complaint the presiding judge at the guilty plea proceeding and all allegedly unlawful acts were done in his official capacity as presiding judge and were within his authority as such. Courts in the United States have unanimously held that "judges are absolutely immune from civil liability for any actions performed by them in their judicial capacity." Steinpreis v. Shook, 377 F.2d 282 (4 Cir. 1967). This prophylactic cloak also extends to suits brought under 42 U.S.C. § 1983. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); McCrary v. Maryland, 456 F.2d 1, 3, (4 Cir. 1972). Defendant Ballenger, the prosecuting attorney in plaintiff's criminal proceeding, raises the same defense as the defendant Singletary, and likewise seeks dismissal. It is settled that a prosecuting attorney, when acting in his official capacity, is protected by the same immunity in a civil suit against him that is applicable to judges, provided, of course, that his acts were within the scope of his jurisdiction and were authorized by law. McCray v. Maryland, supra; Guedry v. Ford, 431 F.2d 660 (5 Cir. 1970). The complaint alleges no acts by the defendant Ballenger which could be construed as falling without the ambit of his authority. Thus, no cause of action cognizable under 42 U.S.C. § 1983 and/or 1985(2) lies against either of these defendants.

The defendant, Dr. Edward Davis, moves for dismissal on the same ground asserted by the defendant Ballenger, viz., that he, as a quasi-judicial officer, is immune from civil suit. The plaintiff alleges that Dr. Davis signed a false statement to the effect that plaintiff was able to stand trial when he was, in fact, aware that plaintiff was under a sedative and not in control of his faculties. It is an uncontroverted fact that Dr. Davis, the county physician, examined the plaintiff at the behest of the court. Physicians appointed by the court to conduct examinations of persons under the jurisdiction of that court are an arm of that court and, as such, are, while acting pursuant to and in the scope of such appointment, afforded the same immunities from civil suit as other quasi-judicial officers. Burkes v. Callion, 433 F.2d 318 (9 Cir. 1970); Bartlett v. Duty, 174 F.Supp. 94 (N.D.Ohio 1959). Plaintiff has offered no allegation or proof that Dr. Davis acted outside the scope of authority vested in him and, therefore, his motion is granted as respects all claims against him.

The defendants Agnew and Branham, plaintiff's retained counsel during his criminal proceeding, have moved for dismissal on the ground that plaintiff has failed to state a cause of action for which relief can be granted. This motion is posited on the contention that 42 U.S.C. § 1983 does not encompass a cause of action based on the ineffectiveness or misdeeds of counsel. Section 1983 prescribes two elements as requisite for recovery: (1) the improper conduct must have been done by some person acting under color of state or loal law, and (2) that such conduct must have subjected the plaintiff to a deprivation of rights secured to him by the United States Constitution. The instant action against defendants Agnew and Branham fails on both grounds. It has been held that an attorney of record in an action at law is an officer of the court, but such position does not in and of itself elevate an attorney to the status of an officer or agent of a governmental unit. Christman v. Pennsylvania, 275 F.Supp. 434, 435 (W.D.Pa.1967). In addition, the only allegations in plaintiff's complaint apposite to these defendants as individuals make out, at best, a cause of action based on negligent representation which does not constitute a denial of due process of the law. Fletcher v. Hook, 446 F.2d 14, 15 (3 Cir. 1971). Therefore, absent diversity of citizenship (plaintiff and both defendants are South Carolina residents), this court is without jurisdiction to hear this matter under 42 U.S.C. § 1983, and these defendants' motions to dismiss the complaint are granted as they pertain to that portion of the complaint cognizable under 42 U.S.C. § 1983. The defendant Owens, Sheriff of Oconee County, does not contend that he is immune from suit or that the acts alleged to have been committed by him are not cognizable under 42 U.S.C. § 1983. Thus, in recapitulation, only Sheriff Owens is amenable to suit under 42 U.S.C. § 1983. However, the complaint also names each defendant as members of the conspiracy and a review of this facet of the cause of action necessarily follows.

The complaint, when viewed with the liberality such pro se petitions command, can possibly be construed as alleging a cause of action cognizable under 42 U.S. C. 1985(2) which reads as follows:

"Obstructing justice; intimidating party, witness, or juror

(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; of it two or more persons conspire for the

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