Opinion
C. A. 8:23-cv-05076-HMH-KFM
11-06-2023
Yahkema Bey[1], Plaintiff, v. AT&T Mobility, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVINF. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a non-prisoner. Pursuant to the provisions of 2 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge authorized to review all pretrial matters in this case and submit findings an recommendations to the district court. The plaintiff's complaint was entered on the dock on October 6, 2023 (doc. 1). Having reviewed the plaintiff's complaint, the undersigne recommends it be dismissed.
ALLEGATIONS
The plaintiff alleges that he entered into a financial agreement with AT& Mobility (AT&T) and was issued a “credit application” and a “coupon note.” Filed with th complaint is a copy of the plaintiff's AT&T bill and remittal correspondence, along with “payment order” prepared by the plaintiff that he apparently sent to AT&T instead of th money due for his cell phone bill (see doc. 1-1). When the defendant refused to accept h so-called “payment order,” the plaintiff brought suit here (id. at 2-3). The plaintiff's fir cause of action is breach of contract, his second cause of action is unjust enrichment, an his third cause of action is tortious interference with contractual relations (id. at 3). F relief, the plaintiff seeks a declaration that the coupon note is valid, an order requiring th defendant to accept any future coupon notes submitted by the plaintiff, and money damages (id. at 3).
APPLICABLE LAW & ANALYSIS
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). As an initial matter, the plaintiff purported to file an executed summons with the court; however, a summons has not been issued by the court in this action and service has not been authorized. As such, the plaintiff is specifically warned that service of matters such as this one may only proceed once the Court issues a summons or authorizes service.
Here, the plaintiff's complaint is subject to dismissal as frivolous. See Feurtado v. McNair, C/A No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). The plaintiff has failed to show that AT&T breached or interfered with his cell phone service contract by refusing his attempt to satisfy his bill with the so-called “payment order” or “coupon note” rather than with money, valid credit, or a true negotiable instrument. The plaintiff has failed to show that AT&T was contractually required to accept his so-called “payment order” or “coupon note” as remitted payment for the cell phone service it provided. The plaintiff's assertion that AT&T was required to accept his “payment order” or “coupon note” because it is a “negotiable instrument” pursuant to the U.C.C., is patently frivolous: a document does not become a negotiable instrument just because the plaintiff claims it is, and he presents nothing to remotely suggest that AT&T agreed to accept such documents as payment.
Indeed, the claims brought by the plaintiff in this action, that the defendant breached a contract with him by refusing his payment coupons and owes him the amount due under the contract based on unjust enrichment, appear to be based on the notion that he has special status in the United States as a “Moorish-American.” Although the plaintiff does not specifically identify himself as a Moorish-American in this action, individuals who are Moorish-American - such as the plaintiff herein - often append or substitute the words El, Ali, or Bey “to their last names to signify their claimed Moorish ancestry.” El-Bey v. City of Greensboro, C/A No. 1:10-cv-00572, 2011 WL 4499168, at *1 n.1 (M.D. N.C. Sept. 27, 2011), Report and Recommendation adopted as modified by 2012 WL 13064405 (M.D. N.C. Mar. 21, 2012), aff'd, 539 Fed.Appx. 312 (4th Cir. 2013). However, such allegations of a special status on this basis have been thoroughly discredited and noted as patently frivolous. See Hemingway-EL v. City of High Point, C/A No. 1:09-cv-00711, 2012 WL 1313312, at *2 (M.D. N.C. Apr. 17, 2012) (collecting cases rejecting claims based upon special status with a “Moorish group”), Report and Recommendation adopted by 2012 WL 1867113 (M.D. N.C. May 22, 2012). Indeed, as recognized by the Honorable Thomas D. Schroeder, United States District Judge for the Middle District of North Carolina, the individuals identifying as Moorish Americans are “the most recent incarnation of a notorious organization of scofflaws and ne'er-do-wells who attempt to benefit from the protections of federal and state law while simultaneously proclaiming their independence from and total lack of responsibility under those same laws.” U.S. v. $7,000.00 in U.S. Currency, 583 F.Supp.2d 725, 732 (M.D. N.C. 2008) (collecting cases finding as frivolous, baseless, fantastical, and delusional, the claims of individuals identifying as part of Moorish groups). As such, the undersigned recommends this action be dismissed as frivolous.
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). It is further recommended that the United States District Judge assigned to this case warn the plaintiff regarding the entry of sanctions in the future should the plaintiff continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).