UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EDWARD RHETT BERRY,
Plaintiff-Appellant,

v.

SOUTH CAROLINA DEPARTMENT OF
SOCIAL SERVICES; YORK COUNTY
DEPARTMENT OF SOCIAL SERVICES;
SARAH BERRY KOHLER; OSCAR
WHITESCARVER, a/k/a Bud; SARAH
                                                               No. 95-2678
PATTIE WHITESCARVER, a/k/a Pattie;
GLEN WALTER, a/k/a Walter, Ph.D.;
TERRY CRIMM, a/k/a Hope; HOPE
COUNSELING CENTER, a/k/a Hope;
LAURIE REED, a/k/a Reed; JOHN T.
WHEELER; BILLIE MATELAND, a/k/a
Mateland; FAMILY COURTS OF YORK
COUNTY, SOUTH CAROLINA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CA-94-876-10BD)

Argued: December 2, 1996

Decided: August 25, 1997

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge,
and DAVIS, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________
Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Chief Judge Wilkinson and Judge Davis joined.

_________________________________________________________________

COUNSEL

ARGUED: Leonard Thomas Bradt, L. T. BRADT, P.C., Houston,
Texas, for Appellant. Andrew Frederick Lindemann, Columbia, South
Carolina; Tracy Lynn Eggleston, COZEN & O'CONNOR, Columbia,
South Carolina, for Appellees. ON BRIEF: William H. Davidson, II,
Columbia, South Carolina; Allan Levin, COZEN & O'CONNOR,
Columbia, South Carolina; Pope D. Johnson, III, MCCUTCHEN,
BLANTON, RHODES & JOHNSON, Columbia, South Carolina;
Danny C. Crowe, TURNER, PADGET, GRAHAM & LANEY, P.A.,
Columbia, South Carolina; John E. Peterson, HARPER, PETERSON
& ROGERS, P.A., Rock Hill, South Carolina; Joel W. Collins, Jr.,
Eric G. Fosmire, COLLINS & LACY, Columbia, South Carolina, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Rhett Berry filed a complaint with nine counts, a dozen defendants,
and innumerable legal theories; all of the claims contest actions, both
civil and criminal, taken by the State of South Carolina against Berry
for abuse of his children. The claims against the"state defendants,"
state and county agencies and the Family Courts, were each dis-
missed, pursuant to a Fed. R. Civ. P. 12(b)(1) and 12(b)(6) motion,
because they were barred by the Eleventh Amendment, federal
abstention doctrine, or mootness. The claims against the private-party
defendants were dismissed as a sanction, pursuant to Fed. R. Civ. P.
37 and 41(b), for Berry's repeated discovery violations and failure to

                    2
obey court orders. We affirm all of the district court's decisions in
this case and conclude that Berry's appeal is utterly without merit.

I

Rhett Berry is the father of three minor children. In October 1991,
Berry was indicted in South Carolina for felony child abuse due to
allegations that he had molested at least one of his children. The
South Carolina Department of Social Services, based upon the same
allegations, also brought a civil action to monitor the welfare of the
Berry children and address custody issues. Although the criminal
indictment was dismissed early in 1992, the civil case remained active
and the York County Family Courts will retain jurisdiction in the mat-
ter until the children reach the age of majority. It appears that the
Family Courts have placed limitations on Berry's access to his chil-
dren. It also appears from the murky record and briefs before us that
Berry has been ordered to pay child support, which he has not done;
that he has been ordered to seek therapy in order to get partial custody
of his children, which he has not done; and that he has spent a short
amount of time in jail for contempt for failure to pay child support.

Berry did not seek to appeal the civil and criminal actions against
him in the South Carolina courts. Instead he brought suit in federal
court against numerous people including his ex-wife, her friends,
numerous counselors at private and public facilities who met with
Berry's children as part of the abuse investigation, the Family Courts,
and the South Carolina and York County Departments of Social Ser-
vices, collectively called D.S.S. by Berry. A magistrate judge handled
all pretrial issues and discovery disputes in the case and made recom-
mendations to the district court. Berry proceeded in these actions pro
se.

During the pre-trial proceedings each of the defendants served
Berry with interrogatories and requests for production. Many of these
requests were never answered and other answers were incomplete and
very untimely. The defendants filed numerous motions to compel,
which always went unanswered. The magistrate judge held a hearing
on several of the motions so that he could instruct Berry personally
about his obligations and the consequences of continued failure to
cooperate.

                     3
Berry was also uncooperative during his deposition, and the magis-
trate judge again warned him that he had to cooperate or risk dis-
missal of his case. Berry alleged that the questions asked violated his
attorney-client privilege; he argued this even though no attorney had
filed an appearance for Berry and Berry had not yet retained counsel.
The magistrate judge gave Berry one day to have his alleged counsel
enter an appearance with the court and prepare to defend the deposi-
tion by telephone. The next day, at the rescheduled deposition, Berry
had not entered any counsel's appearance, was still unrepresented,
and continued to refuse to answer questions. He demanded that the
defendants first provide him with certain discovery, even though the
magistrate judge had told him that such a demand did not allow him
to delay his own deposition. Berry quoted from the Wall Street
Journal, Fed. R. Civ. P. 26 and the Fifth Amendment, and then
walked out of the deposition.

After motions by the defendants for dismissal and numerous addi-
tional motions to compel, the magistrate judge recommended that
Berry's complaint be dismissed and the district court agreed.

II

Berry joined the York County and South Carolina Departments of
Social Services and the Family Courts of York County as defendants
in several different counts of his complaint. The district court dis-
missed each one of the counts as against these "state defendants."
Berry does not contest the district court's dismissal of his RICO
claims, his state law claims or his requests for damages in his federal
claims. On appeal he only takes issue with the district court's dis-
missal of his requests for injunctive relief against these agencies.
However, his arguments are without merit. We hold that the dismissal
of several of these claims was required by the Rooker-Feldman doc-
trine and the doctrine of abstention. We will briefly examine each
doctrine and then examine two of Berry's causes of action in light of
them. The remaining causes of action against the state agencies were
properly dismissed as moot and we will examine those claims in sub-
section D. below.

A.

Supreme Court doctrine forbids a federal district court from sitting
in appellate review over state court decisions, even when those deci-

                    4
sions implicate federal questions. This rule is called the Rooker-
Feldman doctrine after two of the cases which articulate the principle,
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

As the Supreme Court has made clear, "lower federal courts pos-
sess no power whatever to sit in direct review of state court deci-
sions." Feldman, 460 U.S. at 483 n.16 (quoting Atlantic Coast Line
R. Co. v. Bhd. of Locomotive Eng'rs., 398 U.S. 281, 296 (1970)). A
plaintiff may not seek federal district court review of or relief from
a state proceeding which was essentially judicial in nature.1 A plain-
tiff may instead seek recourse in the state court system and may peti-
tion the United States Supreme Court for certiorari if he or she is
dissatisfied with the state courts' handling of the claim and if federal
jurisdiction exists. See Feldman, 460 U.S. at 482; Anderson v.
Colorado, 793 F.2d 262, 263 (10th Cir. 1986) ("Where a constitu-
tional issue could have been reviewed on direct appeal by the state
appellate courts, a litigant may not seek to reverse or modify the state
court judgment by bringing a constitutional claim under 42 U.S.C.
§ 1983.").

The Court in Feldman, 460 U.S. at 482-84, was careful to point out
that its rule does not limit lower federal court jurisdiction over chal-
lenges to general state laws and policies when those policies are
themselves alleged to violate the United States Constitution. Lower
federal courts are, however, precluded from second-guessing the
application of those laws by state courts to individuals. Id. The
Feldman Court created a rule for sorting out general constitutional
challenges to state laws and regulations, over which federal district
courts have power, from requests for review of specific state court
judicial decisions, over which they do not. When the constitutional
claims for which the petitioner seeks judicial review are "inextricably
intertwined with the [state court's] decisions, in judicial proceedings,"
they cannot be reviewed. Feldman, 463 U.S. at 486-87. See also
Guess v. Board of Medical Examiners, 967 F.2d 998, 1002 (4th Cir.
_________________________________________________________________
1 The Court in Feldman, 460 U.S. at 479, distinguished review of state
judicial procedures, over which the lower federal courts have no jurisdic-
tion, from review of legislative, ministerial or administrative proceed-
ings, over which jurisdiction exists.

                     5
1992); Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986). As
Justice Marshall has explained, "[w]here federal relief can only be
predicated upon a conviction that the state court was wrong, it is diffi-
cult to conceive the federal proceeding as, in substance, anything
other than a prohibited appeal of the state-court judgment." Penzoil
Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring).

Rooker-Feldman principles were recently applied in a district court
case factually similar to the instant one. In Duby v. Moran, 901 F.
Supp. 215, 216 (S.D.W. Va. 1995), a mother brought claims under 42
U.S.C. § 1983 contesting the decision of the state Health and Human
Services agency to revoke her custody of her infant son because she
had failed to protect him from abuse. The district court simply held
that it had no jurisdiction to review decisions made by state courts in
judicial proceedings even if the state court's determination was
alleged to be unconstitutional. Id. at 216.

B.

As mentioned above, Berry's claims are also governed by princi-
ples of federal court abstention. The Younger doctrine requires federal
courts to decline to exercise jurisdiction to enjoin pending state court
proceedings despite the presence of alleged constitutional claims. See
Younger v. Harris, 401 U.S. 37 (1971). While originally the doctrine
applied to injunction of state criminal proceedings, it has been
expanded to require abstention from injunction of civil enforcement
proceedings, child custody and welfare determinations, quasi-criminal
judicial proceedings like nuisance actions, and state administrative
proceedings in which important state interests are at stake. See
Employers Resource Management Co., Inc. v. Shannon , 65 F.3d 1126,
1134 n.7 (4th Cir. 1995) (tracing the expansion of Younger doctrine);
Carter v. Maryland Comm'n on Med. Discipline, 639 F. Supp. 542,
545 (D. Md. 1986) (same). The Younger doctrine stems from the
important principles of comity and federalism and from a recognition
that state courts are as capable as federal courts of deciding federal
and constitutional issues. Martin Marietta Corp. v. Maryland
Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994).

We have developed a three part test for determining when Younger
abstention is appropriate. There must be (1) an ongoing state proceed-

                     6
ing; (2) the proceeding must implicate important state interests; and
(3) the proceeding must offer an adequate opportunity for presenta-
tion of the federal and constitutional claims. See Shannon, 65 F.3d at
1134; Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d
244, 251 (4th Cir. 1993).2 It is noteworthy that we only review a
lower court's decision to abstain for abuse of discretion. See Shannon,
65 F.3d at 1134; Richmond F. & P. v. Forst, 4 F.3d at 250.

The principles of Younger were recently applied in a case similar
to the instant one in which parents sued to enjoin ongoing state pro-
ceedings investigating their abuse and neglect of their daughter. Renn
v. Garrison, 845 F. Supp. 1127 (E.D.N.C. 1994). The court applied
our three part test and found that abstention was appropriate with
respect to all of the plaintiffs' claims for injunctive relief. Id. at 1129.
The Renn court found that child custody actions do implicate vital
state interests and relied upon Moore v. Sims , 442 U.S. 415 (1979),
which applied Younger to child custody matters. Renn, 845 F. Supp.
at 1130. The Renn court further found that the state courts provided
an adequate remedy for the plaintiffs and that no exception to
Younger applied which required the federal courts to exercise juris-
diction. Id.

C.

When we apply the principles of Rooker-Feldman and Younger
abstention to the instant case, it is clear the district court properly dis-
missed all claims in counts one and two of Berry's complaint. In
those two counts Berry sued the state defendants for allowing psycho-
logical tests of the Berry children to be introduced as evidence at the
child custody and welfare proceedings; failing to video-tape all inter-
views between state psychologists and young children, including the
Berry children, for introduction at Family Court proceedings; limiting
Berry's hearings on child support and other custody issues to fifteen
_________________________________________________________________
2 Younger abstention is limited by certain narrowly tailored exceptions.
When a state action is continued in bad faith, when it constitutes harass-
ment, or when it could result in irreparable injury without federal inter-
vention, abstention is inappropriate. See Moore v. Sims, 442 U.S. 415,
432-33 (1979); Renn v. Garrison, 845 F. Supp. 1127, 1130 (E.D.N.C.
1994).

                      7
minutes; ordering Berry to undergo therapy and counseling and limit-
ing his visitation with his children until he has done so; finding him
in criminal contempt of court without appointing counsel to represent
him.3

It is clear that the district court, in ruling on the merits of any of
these claims, would be impermissibly sitting in review of state court
proceedings. Moreover, as the Family Courts retain jurisdiction over
the Berry children until they reach the age of majority, were the dis-
trict court to grant the injunctive relief requested by Berry it would
plainly be violating the doctrine of abstention.

We note that, despite Berry's attempts to convince us otherwise,
none of his claims in counts one and two are merely broad-based,
general attacks upon state policies. Instead, Berry is clearly seeking
direct review of the application of those laws and policies to himself.
To the extent that Berry wanted to pursue his general attacks against
D.S.S. and the Family Courts, he should have appealed any adverse
decisions and treatment in the state courts. In Guess v. Board of Medi-
cal Examiners, 967 F.2d 998, 1002 (4th Cir. 1992), we addressed a
case in which a plaintiff sought review of a state court decision but
cast his claims in general constitutional terms. We held that the dis-
trict court had properly declined to grant injunctive relief to the plain-
tiff because the issues raised by the plaintiff were inextricably
intertwined with the specific adjudications already made by the state
court. Id. at 1004. We made clear that, to the extent it was appropriate
for the plaintiff to raise a general challenge to state law, he had either
already done so in state court, and received an unfavorable result,
which the lower federal courts could not review, or should have done
so; in either case, we held that the general attacks were res judicata.
Id.

In the instant case, we decline to review or enjoin the decisions of
the South Carolina courts.
_________________________________________________________________

3 We assume that Berry made these claims pursuant to 42 U.S.C.
§ 1983, although he cites no statutory authority whatsoever.

                     8
D.

In Berry's third, fourth and fifth causes of action, he sues state and
county D.S.S. for malicious prosecution, civil conspiracy, and depri-
vation of civil rights through malicious prosecution.4 Berry's claims
stem from the 1991 criminal indictment issued against Berry alleging
criminal child abuse, which was dismissed in early 1992. While origi-
nally Berry sued for injunctive relief from future malicious prosecu-
tions and damages for the past prosecution, he only appeals the
decision with respect to injunctive relief as against the state defen-
dants.

The district court dismissed these claims on the ground of moot-
ness. The court found that, to the extent that Berry was seeking
injunction of malicious prosecution, his claim was moot because the
prosecution had been terminated long ago and there was no indication
that it would be reopened.

We fully agree with the district court's decision to dismiss on the
ground of mootness, and find that it is well supported by precedent.
The Supreme Court recently reiterated that cases in which there is no
longer an active controversy are moot and not suitable for review in
federal court. See Arizonans for Official English v. Arizona, 117 S. Ct.
1055 (1997). "To qualify as a case fit for federal court adjudication,
an actual controversy must be extant at all stages of review. . . ." Id.
at 1068 (internal quotation marks and citations omitted). The
Arizonans Court found moot a suit to enjoin a law requiring state
employees to use only English after the sole plaintiff left state
employment for the private sector. Id. at 1069. Similarly, in Williams
v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991), for instance, we found
that a prisoner's request for injunctive relief from unlivable prison
conditions became moot when he was transferred to another prison.

Berry argued below that his claim is still viable because he is suing
on behalf of others similarly situated who may still be subjected to
_________________________________________________________________
4 Again, we treat these claims as if they were made pursuant to 42
U.S.C. § 1983. The private defendants were also charged in counts three,
four, and five, and dismissal of all claims against those defendants will
be addressed in Part III., infra.

                    9
state criminal actions for child abuse. However, the district court was
correct to reject that argument, pointing out that Berry's suit was not
a class action and therefore could only vindicate his own rights. In
Hummer v. Dalton, 657 F.2d 621, 625-26 (4th Cir. 1981), we
addressed a prisoner's suit which had been denied class action status
and was the claim of a single inmate. We first noted that the court had
properly denied class action status because the plaintiff was proceed-
ing pro se. Id.; see also Oxedine v. Williams, 509 F.2d 1405, 1407
(4th Cir. 1975) (holding that a pro se litigant cannot represent the
rights of others in a class action). We then found that, because the sin-
gle plaintiff could not sue as a "knight-errant for all prisoners," and
because many of the plaintiff's claims became moot with respect to
himself when the prison granted his requests for improved living con-
ditions, those claims should be dismissed. Id . As Berry has never filed
a class action suit, let alone successfully had a class certified, and as
his claims with respect to himself alone are moot, it was proper for
the district court to dismiss Berry's remaining counts against D.S.S.

Given this web of abstention and mootness, the district court was
correct to dismiss all of the counts involving the state defendants.

III

After dismissing the claims against the state defendants, the district
court dismissed all of Berry's remaining claims against the private
defendants as a sanction for discovery violations and for failure to
prosecute, pursuant to Fed. R. Civ. P. 37 and 41(b). Berry contests
this dismissal. We must review the district court's decision to insure
that it applied the correct legal standard and did not abuse its discre-
tion in dismissing the claims against the private defendants. See
Mutual Fed. Sav. and Loan Ass'n v. Richards & Assoc., Inc., 872 F.2d
88, 92 (4th Cir. 1989) (applying abuse of discretion to review of Rule
37 sanctions); Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)
(employing same standard in Rule 41 context).

Rule 37 provides that parties in civil proceedings must comply with
discovery requests, court orders regarding discovery, and discovery
plans, and it allows a court to issue sanctions for failure to comply.
We have held that a court contemplating dismissal as a sanction for
failure to comply with discovery orders must consider four factors:

                     10
(1) whether the non-complying party acted in bad faith; (2) the degree
of prejudice suffered by the other parties as a result of the failure to
comply; (3) the deterrence value of dismissal as a sanction for this
sort of non-compliance; and (4) the efficacy of a less drastic sanction.
Mutual Federal v. Richards, 872 F.2d at 92. Rule 41(b) allows a court
to dismiss a claim for failure of the plaintiff to prosecute the claim or
for the plaintiff's failure to comply with court orders regarding the lit-
igation. The test for dismissal pursuant to Rule 41(b) is similar to that
for Rule 37, and requires a judge to consider (1) the degree of the
plaintiff's personal responsibility for the failures; (2) the amount of
prejudice caused to the defendant; (3) the existence of a history of the
plaintiff deliberately proceeding in a dilatory fashion; and (4) the
availability of a less drastic sanction. See Ballard v. Carlson, 882
F.2d at 95. We have also stated that before a dismissal a court must
give a plaintiff a "clear and explicit" warning of the consequences of
failing to satisfy the court's conditions and orders. See Choice Hotels
Int'l, Inc. v. Goodwin and Boone, 11 F.3d 469, 472 (4th Cir. 1993).
Finally, we have reminded that dismissal as a sanction is an extreme
remedy to be used only when a party has displayed callous disregard
to its obligations or exhibited very bad faith. See Id.

When these standards are applied to Berry's case, we are convinced
that the extreme sanction of dismissal was appropriate. It is without
question that the district court and the magistrate judge both exhaus-
tively reviewed the history of discovery disputes in the case before
recommending and ordering dismissal. They correctly found that
Berry had violated several direct orders of the court to comply with
discovery requests, had missed deadlines, and that the court had
directly warned Berry of the ramifications of continued delays,
untimeliness, and failure to comply with court orders. The magistrate
judge also pointed out that he had granted a hearing on several of the
defendants' motions to compel discovery from Berry, even when
those motions were facially meritorious, in order to give Berry, who
was proceeding pro se, the best understanding of his responsibilities.
When Berry refused to cooperate at his own deposition, the magis-
trate judge repeatedly warned Berry by phone that he had to answer
all questions and that failure to do so would result in sanctions,
including dismissal. Despite these orders, Berry continued to refuse
to answer certain questions, and then walked out of his deposition.

                     11
Before recommending dismissal, the magistrate judge carefully
outlined the prejudice, through cost and delay, incurred by the defen-
dants as a result of Berry's failure to cooperate. Further, the magis-
trate judge found that none of the reasons Berry gave for his failure
to cooperate excused his noncompliance and that he alone was
responsible. We will not disturb the magistrate judge's assessment
that Berry's numerous excuses were not persuasive. See Ballard, 882
F.2d at 96 (declining to second-guess district court's rejection of
plaintiff's excuses for failure to obey a court order). Given the stan-
dards of Ballard and Mutual Federal, the district court was correct to
conclude that dismissal pursuant to Rules 37 and 41(b) was an appro-
priate and necessary sanction in light of the circumstances of Berry's
case.

Finally, the magistrate judge was certainly mindful, both in recom-
mending dismissal and throughout the proceedings, of the fact that
Berry was a pro se litigant. The magistrate judge correctly pointed out
that a pro se litigant is not completely protected from sanctions sim-
ply because he or she lacks counsel. See, e.g. , Ballard, 882 F.2d at
95 (holding that dismissal was appropriate where a pro se litigant was
explicitly warned about failure to comply with court order).

We are satisfied that dismissal of all of Berry's claims against the
non-state defendants was appropriate.

IV

We conclude that Berry's appeal is utterly without merit. Berry's
claims against the state agencies were properly dismissed on the
grounds of the Rooker-Feldman doctrine, abstention, or mootness and
the remaining claims were properly dismissed as a sanction for
Berry's repeated discovery violations and contumacious behavior. In
fact, having carefully reviewed the record and Berry's brief, we con-
clude that Berry's appeal is frivolous within the meaning of Federal
Rule of Appellate Procedure 38. See, e.g., Brock v. Angelone, 105
F.3d 952 (4th Cir. 1997) (ordering a $500 sanction as a Rule 38 pen-
alty for frivolous appeal). We therefore order Berry to show cause
why sanctions should not be assessed against him.

AFFIRMED

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