Rogers v. Carrig

• Decision Date: 29 September 2016
• Docket Number: Case No. 3:16-cv-3163-TMC-MGB
• Parties: Hayward L. Rogers, #278510, Plaintiff, v. Beth A. Carrig, et al., Defendants.
• Court: U.S. District Court — District of South Carolina

Hayward L. Rogers, #278510, Plaintiff, v. Beth A. Carrig, et al., Defendants.

Case No. 3:16-cv-3163-TMC-MGB

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

September 29, 2016

REPORT AND RECOMMENDATION

This case is before the Court for initial review. Hayward L. Rogers ("Plaintiff") has filed a civil action pursuant to 42 U.S.C. § 1983, and is proceeding pro se and in forma pauperis ("IFP"). Plaintiff is a state prisoner incarcerated at Broad River Correctional Institution in South Carolina. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2), the Magistrate Judge is authorized to review the record and to submit findings and recommendations to the District Judge. Upon careful review, the Magistrate Judge recommends that the Complaint be summarily dismissed, without issuance and service of process, for the following reasons:

I. Standard of Review

Under established local procedure in this judicial district, the Magistrate Judge has carefully reviewed this pro se prisoner complaint pursuant to 28 U.S.C. §§ 1915, 1915a, and under the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).

The Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant 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). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke, 490 U.S. at 319.

With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke, 490 U.S. at 326. The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).

Pro se pleadings are liberally construed and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore., 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiringgenerous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986).

II. Background

Plaintiff has filed repetitive petitions and related lawsuits.¹ This civil action arises out of his efforts to challenge his 2001 criminal conviction and the results of his state PCR proceedings. Plaintiff's extensive filing history will be summarized as succinctly as possible.²

In February of 1999, the Grand Jury for Lexington County, South Carolina, indicted Plaintiff for two counts of first degree criminal sexual conduct (Indictment Nos. 1999-GS-32-815 and 1999-GS-32-818), kidnaping (Indictment No. 1999-GS-32-813), strong armed robbery (Indictment No. 1999-GS-32-814), and assault and battery with intent to kill (Indictment No. 1999-GS-32-819).³ Plaintiff received a jury trial, and on September 21, 2001, was convicted. Plaintiff was sentenced to fifteen (15) years imprisonment for the strong armed robbery conviction, and life imprisonment without parole pursuant to South Carolina Code § 17-25-45(A) for each remaining conviction, to run concurrently. On August 9, 2004, the South Carolina Court of Appeals affirmed the convictions and sentences. See State v. Rogers, 361 S.C. 178, 603 S.E.2d 910 (Ct. App. 2004).

While his direct appeal was pending, Plaintiff filed a federal habeas petition, which was dismissed without prejudice for lack of exhaustion of state remedies. See D.S.C. Case No. 8:02-cv-3820. Plaintiff then filed second, third, and fourth petitions, which were all summarily dismissed for the same reason. See D.S.C. Case Nos. 8:03-cv-2745; 8:03-cv-3050; 8:04-cv-512. The Fourth Circuit Court of Appeals dismissed Plaintiff's appeals regarding the third and fourth petitions. See Rogers v. McMaster, 115 F. App'x 156 (4th Cir. 2004); Rogers v. Rushton, 124 F. App'x 812 (4th Cir. 2005), cert. denied, 546 U.S. 863 (2005).

In 2004, Plaintiff filed an application for state post-conviction relief ("PCR"), raising various issues, including that a sample of his blood had been obtained by an allegedly "unlicensed" nurse. He characterized this as an "unconstitutional search and seizure." (See Lexington Cty. Court of Common Pleas, Case No. 2004-CP-32-3932). Subsequently, Plaintiff also filed four more federal habeas petitions (D.S.C. Case Nos. 8:05-cv-1555, 8:06-cv-2724, 8:07-cv-947, and 8:08-cv-2883), which were all summarily dismissed. The Fourth Circuit Court of Appeals dismissed Plaintiff's appeals. See Rogers v. Rushton, 2006 WL 1827999 (4th Cir. 2006); Rogers v. Rushton, 2008 WL 2611332 (4th Cir. 2008).

The District Court then imposed a filing injunction, holding that:

[T]he court has carefully reviewed the entire record and concludes that a pre-filing injunction is warranted .... Petitioner's multiple habeas corpus actions filed during the pendency of his direct appeal and application for post-conviction relief are duplicative and vexatious, causing the needless expense of court resources and time. The court finds that Petitioner's habeas claims are without merit because Petitioner has again failed to exhaust his state remedies despite repeated encouragement by this court to do so.

Rogers v. Rushton, Case No. 8:08-2883-MBS-BHH, 2010 WL 478826 (D.S.C. Feb. 4, 2010).⁴

After a hearing, the state court dismissed Plaintiff's 2004 PCR application. (See Lexington Cty. Common Pleas Court Case No. 2004-CP-3203932).⁵ Plaintiff persisted in filing more PCR applications. (Case Nos. 2004-CP-3204143, 2010-CP-3203792). The state court dismissed the 2010 PCR application as untimely and entered a "Final Order of Dismissal" on January 4, 2012. Another PCR application (Case No. 2010-CP-3203237) was dismissed on April 29, 2016.

Meanwhile, on July 6, 2012, Plaintiff filed his ninth habeas petition, raising twenty-three (23) issues, including alleged "actual innocence." The Magistrate Judge recommended that the "actual innocence" argument was meritless (i.e. Plaintiff had alleged that DNA evidence was "suppressed" by counsel, when in fact, the record plainly showed otherwise).⁶ On May 29, 2013, the District Court adopted the report and denied habeas relief on the merits. Rogers v. Cartledge, Case No. 2:12-cv-1858-TMC-BHH (DE# 68, Order), 2013 WL 2338617 (D.S.C. May 29, 2013), appeal dismissed by 544 F.App'x 211 (4th Cir. Oct. 25, 2013). Plaintiff filed a tenth habeas petition which was voluntarily dismissed after a Report and Recommendation pointed out that it was unauthorized, successive, and subject to dismissal. See Case No. 14-cv-3745-TMC-WWD.

Plaintiff then attempted multiple times to challenge his 2001 convictions by means of civil actions under 42 U.S.C. § 1983. Such cases were summarily dismissed. See, e.g., Case No. 3:14-cv-4271-TMC-WWD (dismissing § 1983 action against eight defendants, including assistant state attorney general, and explaining that Plaintiff could not challenge his 2001 criminal convictions by means of a § 1983 action); Case No. 2:15-cv-1886-TMC-MGB (summarily dismissing § 1983 action against state attorney general and state judge). Plaintiffpresently has several other cases pending in federal court. See Rogers v. Wilson, et al., D.S.C. Case No. 2:16-cv-558-TMC-MGB (repetitively attempting to challenge his 2001 convictions and sentences pursuant to 42 U.S.C. § 1983); Rogers v. Cartledge, D.S.C. Case No. 2:16-cv-3064-TMC-MGB (attempting to bring another unauthorized successive habeas petition).

Plaintiff filed the present civil action pursuant to 42 U.S.C. § 1983 on August 14, 2016. In his Complaint (74 pages, including exhibits), Plaintiff sues four defendants: 1) his PCR counsel David Allen; 2) Assistant Attorney General Patrick L. Schmeckpeper of the South Carolina Attorney General's Office; 3) Beth Carrigg, Lexington County Clerk of Court; and 4) Debra McDaniels (described as "records clerk-secretary" for the Lexington County 11^th Circuit Solictor's Office). (DE# 1). Plaintiff sues them in both official and individual capacity. (Id. at 3).

Plaintiff sues these defendants for a plethora of alleged constitutional violations. (DE# 1 at 6, listing "1^st, 4^th, 5^th, 6^th, 8^th, 11^th, 14^th, 15^th, Article 1 Setion (sic) II, art. 1 & 3, art. 5 & 22"). The Complaint...