Wagner v. U.S., 3:06-2838-PMD.

• Decision Date: 16 January 2007
• Docket Number: No. 3:06-2838-PMD.,3:06-2838-PMD.
• Citation: 486 F.Supp.2d 549
• Court: U.S. District Court — District of South Carolina
• Parties: Theodore WAGNER, # 286910, Plaintiff, v. UNITED STATES of America, Defendant.

486 F.Supp.2d 549

Theodore WAGNER, # 286910, Plaintiff, v. UNITED STATES of America, Defendant.

No. 3:06-2838-PMD.

United States District Court, D. South Carolina.

January 16, 2007.

COPYRIGHT MATERIAL OMITTED

Theodore Wagner, Ridgeland, SC, Pro se.

ORDER

DUFFY, District Judge.

This matter is before the court upon Plaintiff Theodore Wagner's ("Wagner" or "Plaintiff') objections to the Magistrate Judge's recommendation that Plaintiffs claim be summarily dismissed pursuant to 28 U.S.C. § 1915A for failing to set forth a claim upon which relief may be granted. The record contains a report and recommendation of the United States Magistrate Judge ("the R & R"), which was made in accordance with 28 U.S.C. § 636(b)(1)(B). A party may object, in writing, to a R & R within ten days after being served with a copy of that report. 28 U.S.C. 636(b)(1). Plaintiff has filed timely objections to the R & R.

I. BACKGROUND

On April 9, 2002, Wagner was indicted for four counts of production of child pornography, and one count of possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(b). On August 14, 2002, Wagner pled guilty to one count of production of child pornography and one count of possession of child pornography pursuant to a written plea agreement.¹ On April 16, 2003, against the advice of his counsel, Wagner informed the court in writing that he wished to withdraw his guilty plea. Wagner formally moved to withdraw his guilty plea in open court on April 21, 2003. After a thorough consideration of the factors set forth in United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991), the court denied his request.² The court then sentenced Wagner to a term of imprisonment of 151 months, and to a term of supervised release of three years to run concurrently on each count.

Wagner appealed his conviction and sentence to the. United States Court of Appeals for the Fourth Circuit. On February 23, 2004, the Fourth Circuit affirmed his conviction and sentence. See United States v. Theodore Thomas Wagner, 88 Fed.Appx. 593, 2004 WL 324705 (4th Cir. 2004).³

On February 8, 2005, Wagner filed a motion to vacate his sentence under 28 U.S.C. § 2255, claiming that he received ineffective assistance of counsel, as his counsel had a "change of loyalty" during the investigation and prosecution of his case ("Ground One"); that the. prosecution team committed "misconduct and felonious acts" ("Ground Two"); that the Moore test used to determine whether he could withdraw his plea is unconstitutional ("Ground Three"); and that the FBI deprived him of his due process rights by instructing state detectives to get a warrant using "known perjured statements" ("Ground Four"). Thereafter, the government filed a motion to dismiss Wagner's motion to vacate. On June 22, 2005, the district court granted the government's motion and dismissed Wagner's motion.

Wagner appealed the dismissal of his § 2255 motion to the Fourth Circuit. On October 31, 2005, the Fourth Circuit entered a judgment denying a certificate of appealability and dismissing Wagner's appeal. On February 13, 2006, the Fourth Circuit denied Wagner's petition for rehearing.

Wagner then attempted to petition for a writ of certiorari to the Supreme Court of the United States. Wagner alleges that the mail room clerks at the Ridgeland Correctional Institution ("RCI") failed to timely deliver necessary legal documents to him, causing him to file his petition one day out of time. Wagner claims that on May 11, 2006, in anticipation of being unable to timely file the petition for writ of certiorari, he had sent a "motion to file past deadline" to the Supreme Court. The Clerk of the Supreme Court did not receive this motion. Accordingly, on May 23, 2006, the Clerk of the Supreme Court returned. Wagner's petition to him, explaining that "[w]hen the time to file a petition for a writ of certiorari in a civil case (habeas action included) has expired, the Court no longer has the power to review the petition."

On June 22, 2006, Wagner sent his petition for writ of certiorari back to the Supreme Court, including an "affidavit of service" attesting to his having sent the motion to file past deadline on May 11, 2006. On July 3, 2006, the Clerk of the Supreme Court wrote to Wagner to inform him that his "application for an extension of time within which to file a petition for a writ of certiorari" had been denied.

Wagner now brings this untitled action against "the United States of America," alleging that due to the prison officers' failure to timely deliver his mail and to the Supreme Court's refusal to grant his application for an extension of time within to file his petition for a writ of certiorari, he has been denied his constitutionally protected right to due process under the Fifth Amendment and his right to "petition the government for a redress grievances" as provided by the First Amendment. Wagner seeks damages for these alleged violations of his constitutional rights.

The Magistrate Judge, interpreting this action as one for damages under 42 U.S.C. § 1983, recommended that the court dismiss the complaint without prejudice and without issuance and service of process (1) because the United States of America has not consented to be sued for the constitutional violations of federal and/or state officers, and (2) because, under the Prison Litigation Reform Act ("PLRA"), Wagner's claim that the employees in the prison mail room deprived him of access to the courts cannot be heard by a district court until Wagner has exhausted his available prison administrative remedies.

STANDARD OF REVIEW

A. The Magistrate Judge's R & R

The Magistrate Judge makes only a recommendation to the court. 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). The court reviews de novo those portions of the R & R to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). After a review of the entire record, the R & R, and Plaintiffs objections, the court finds that the Magistrate Judge summarized the facts and applied the correct principles of law. Accordingly, the R & R is adopted in full and specifically incorporated into this Order.

B. 28 U.S.C. 1915A — Failure to State a Claim

Dismissals under 28 U.S.C. § 1915A for failure to state a claim require the same standard of review as dismissals under Rule 12(b)(6). Veney v. Wyche, 293 F.3d 726, 730 (4th Cir2002); Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir.1999); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.Cir.1998). Under this well-known standard, the court should not dismiss a complaint for failure to state a claim unless "after accepting all wellpleaded allegations in the plaintiffs complaint as true and drawing all reasonable factual inferences from those facts in the plaintiffs favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 248 (4th Cir.2005); Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). "Moreover, when such a dismissal involves a civil rights complaint, `we must be especially solicitous of the wrongs alleged' and `must not dismiss the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.'" Harrison v. United States Postal Serv., 840 F.2d 1149, 1152 (4th Cir.1988).

DISCUSSION

Wagner enumerates the following eight objections to the Magistrate Judge's R & R: (1) Wagner objects to being referred to as "Theodore Thomas Wagner;" he wants to be known only as "Theodore Wagner." (2) He objects to the classification of his claim as a claim for damages pursuant to 42 U.S.C. § 1983.(3) He claims that because he satisfied the Supreme Court Rule 13 requiring a petitioner to show "good cause" for the delay before a person can file past the deadline, the Supreme Court's failure to grant a writ of certiorari was unconstitutional. (4) He objects to the Magistrate Judge's finding that a claim under § 1983 is not an appropriate means of bringing a complaint against the judiciary. (5) He objects that the appeals process is a farce and a sham. (6) He objects that the Federal Tort Claims Act is unconstitutional. (7) He objects to the Magistrate Judge's reliance on the PLRA's requirement of exhaustion of administrative remedies, which he claims is unconstitutional. (8) Finally, Wagner objects that the PLRA's requirement that a prisoner pay a modest initial filing fee before case may proceed is unconstitutional. The court, interpreting these Objections so that they are responsive to the conclusions in the R & R, addresses them as follows:

A. The United States of America as a Defendant

Wagner objects to the R & R's finding that the United States of America is immune from suit. He asserts that he has "a grievance with the United States government/Supreme Court which has caused [him] monetary damages and demand [his] constitutional Freedom to present [his] grievance to a jury of my peers." (Objections at 2.)

Pursuant to well established principles of sovereign immunity, the Magistrate Judge correctly found that "the United States of America could not be sued without its express consent, and that express consent is a prerequisite to a suit against the United States." (R & R at 3, citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).) The Magistrate Judge noted that the United States has not consented to suit except under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, which made the United States liable for the...