Opinion
C/A: 2:19-941-BHH-BM
07-10-2019
Dreyah Moorae Bey, a/k/a or f/k/a Andrea Moire Coaxum, Plaintiff, v. Jobany Colon; County of Charleston, South Carolina; Nina L. Savas, Assistant Solicitor; Judge Jennifer McCoy, Defendants.
REPORT AND RECOMMENDATION
This is a civil action filed by the Plaintiff, Dreyah Moorae Bey, also known as or formerly known as Andrea Moire Coaxum, pro se, and is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Background
Plaintiff asserts that she brings this action pursuant to 42 U.S.C. § 1983 and claims that her statutory rights under 18 U.S.C. § 242 have been violated. She also appears to allege state law claims. Complaint, ECF No. 1 at 3-5. Plaintiff submitted various attachments to her Complaint, including a document titled "IN THE NATURE OF SUPPLEMENTAL RULES FOR ADMINISTRATIVE AND MARITIME CLAIMS RULES C(6)"; copies of Defendant Jobany Colon's criminal sentencing sheets; General Services Administration (GSA) Standard Forms 24, 24,25, 25A, and 28; the United Nations Declaration of the Rights of Indigenous Peoples; a document titled "AFFIDAVIT OF CLAIM"; purported certified copies of various public documents; a purported Uniform Commercial Code (UCC) Financing Statement; a document titled "SECURITY AGREEMENT/FEE SCHEDULE/DBA"; and a document titled "THE MOORISH DIVINE AND NATIONAL MOVEMENT OF THE WORLD LEGAL NOTICE! NAME DECLARATION, CORRECTION PROCLAMATION AND PUBLICATION". (ECF No. 1-1).
In addition to the attachments to her Complaint, Plaintiff also submitted a pleading titled "Truth Affidavit" (ECF No. 8) with attachments (ECF No. 8-1), all of which have been considered by the undersigned in preparing this report and recommendation.
Plaintiff asserts that Defendant Jobany Colon murdered her son, Davon Smith, Jr., on May 19, 2017. ECF No. 1 at 5. Records from Charleston County indicate that on January 10, 2019, Colon pled guilty and was sentenced to twenty-five years imprisonment for manslaughter/voluntary manslaughter, and pled guilty and was sentenced to five years as to a charge of weapons/possession of a weapon during a violent crime. See Charleston County Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10001&Casenum=2017A1010202982&CaseType=C&HKey=907977109787373109701229781114521098275101868511483119535078101887011410711867848986531211168011957115 (manslaughter); https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10001&Casenum=2017A1010202983&CaseType=C&HKey=7710510148107120108565666748654103115118107858188117120711095549478610275114111685211483102701 0273677652 (weapons). Defendant Nina L. Savas, Assistant Solicitor, was the prosecutor, and Defendant Judge Jennifer McCoy was the presiding judge, for Colon's criminal cases. As relief, Plaintiff requests:
The Court may take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
ENFORCE TORT CLAIM DUE TO COURT'S DISHONOR OF SPECIFIC PERFORMANCE WITHIN TIMEFRAME - ACCUSED ACCEPTED PLEA DEAL & WAIVED HIS RIGHTS.ECF No. 1 at 6. In the documents attached to her Complaint, Plaintiff requests that she be awarded $700,000,000, and that twelve of her son's relatives each be awarded $350,000,000. (ECF No. 1-1 at 5-6).
Discussion
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a 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 frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 319. Further, while this Court is also required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the requirement of liberal construction does not mean that the Court can ignore a clear failure in a pleading to allege facts which set forth a claim currently cognizable in a federal court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Initially, Plaintiff's Complaint is subject to dismissal because it is characterized by what some courts have described as "buzzwords" or "legalistic gibberish." See, e.g., Rochester v. McKie, No. 8:11-797, 2011 WL 2671228, at *1 (D.S.C. July 8, 2011) (citing Yocum v. Summers, No. 91-3648, 1991 WL 171389, at *1 (N.D.Ill. Aug. 30, 1991)).Although Plaintiff lists one criminal statute (18 U.S.C. § 242) as an alleged basis of federal jurisdiction (which is discussed further below), her allegations are so generally incomprehensible and filled with what could only be considered by a reasonable person as unconnected, conclusory, and unsupported comments, or "gibberish," that it is unclear what is to be made of them. See Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) [Noting that federal courts lack power to entertain claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit"]; see also Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2nd Cir. 1998); Adams v. Rice, 40 F.3d 72 (4th Cir. 1994)[Affirming dismissal of plaintiff's suit as frivolous where allegations were conclusory and nonsensical on their face]. Thus, Plaintiff's Complaint is in violation of the directive in Federal Rule of Civil Procedure 8(a) that pleadings shall contain "a short and plain statement" of the basis for the court's jurisdiction and of the basis for a plaintiff's claims against each defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)[requiring, in order to avoid dismissal, "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'"].
Plaintiff attached to her Complaint a copy of what appears to be a tort claim (requesting that she and her son's relatives be paid monetary damages) which she allegedly presented to the "Solicitor's Office" and "The Charleston County Judicial Court" with copies of "Bid Bond", "Payment Bond", and "Affidavit of Individual Surety" forms from the GSA. It is unclear how these forms, used in conjunction with federal government contracting bids, apply to Plaintiff's allegations against a private individual (Colon) and the State of South Carolina Defendants. Moreover, although Plaintiff attached a copy of the United Nations Declaration on the Rights of Indigenous Peoples to her Complaint, there is nothing to indicate that she may bring a claim pursuant to it, and this document is not a legally binding instrument under international law. See El v. Delgado, No. 1:10CV38, 2010 WL 5201195 (N.D.W.Va. Nov. 5, 2010)(citing to "Frequently Asked Questions Declaration on the Rights of Indigenous Peoples www.un.org").
Plaintiff has also failed to state any theory for which she has a cause of action under the Uniform Commercial Code (UCC), which sets forth that one of its primary purposes is "to simplify, clarify, and modernize the law governing commercial transactions." UCC, § 1-103(a)(1)[Construction of [Uniform Commercial Code] to Promote its Purposes and Policies; Applicability of Supplemental Principles of Law]. Court proceedings, such as the civil § 1983 action she brings here are not "commercial transactions." See, e.g., Bey v. Jefferson, No. 2:17-1007-RMG-MGB, 2017 WL 9250348 (D.S.C. Apr. 24, 2017), adopted by 2017 WL 1956979 (D.S.C. May 11, 2017).
In response to a question on the Complaint form asking what federal constitutional or statutory right Plaintiff claims was violated, she wrote "USC Title 18 Part 1 Chapter 13 § 242." ECF No. 1 at 4. However, this is a criminal statute that does not give rise to civil liability or authorize a private right of action. See United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003)[finding that the District Court properly dismissed defendant's claim filed pursuant to 18 U.S.C. §§ 241 and 242 because he had no private right of action under either of those criminal statutes]; Wagner v. United States, 377 F.Supp.2d 505, 510-511 (D.S.C. 2005) [§ 241 is a criminal statute that provides no private cause of action]; Rockfeller v. U.S. Ct. of Appeals Office, 248 F.Supp.2d 17, 23 (D.D.C. 2003)[the plaintiff was precluded from bringing case under § 242 because there is no private cause of action under this criminal statute](collecting cases). Here, although Plaintiff states that she is asserting her claims pursuant to 42 U.S.C. § 1983, she has failed to allege any comprehensible claim that any of her rights under the Constitution or the laws of the United States were violated.
Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States," Rehberg v. Paulk, 566 U.S. 356, 361 (2012); and to state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Moreover, although Plaintiff requests monetary damages on behalf of some of her family members, none of these purported plaintiffs has signed the Complaint. To the extent that Plaintiff is attempting to assert claims on behalf of these family members, she may not do so. While an individual's right to represent himself or herself pro se in federal court is protected by statute; see 28 U.S.C. § 1654; the right to litigate one's claims without an attorney "does not create a coordinate right to litigate for others." Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005); see also Asad v. Arab Bank, PLC, 117 F. App'x 466, 467 (7th Cir. Nov. 12, 2004)[Plaintiff who is not a lawyer may not represent the interests of any other litigant].
Plaintiff may also be attempting to assert claims on behalf of other persons as the personal representative of her son's estate. However, courts are in general agreement that where an estate has beneficiaries other than the personal representative (or administrator or executrix) the estate must be represented by counsel. See Witherspoon v. Jeffords Agency, Inc., 88 F. App'x 659 (4th Cir. 2004)(unpublished per curiam); Shepard v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Pridgen v. Andresen, 113 F.3d 391, 393 (2nd Cir. 1997). "[W]hen an estate has beneficiaries or creditors other than the administratrix or executrix [or personal representative], the action cannot be described as the litigant's own, because the personal interests of the estate, other survivors, and possible creditors will be affected by the outcome of the proceedings." Pridgen, 113 F.3d at 393 (internal quotations omitted).
Any § 1983 claims against Defendant Colon should also be dismissed as Colon is a private individual and not a state actor. Because the United States Constitution regulates only the government, not private parties, a litigant asserting a § 1983 claim that her constitutional rights have been violated must first establish that the challenged conduct constitutes "state action." See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and "the party charged with the [conduct] must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); see U. S. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir.1991). Although a private individual or corporation can act under color of state law, his, her, or its actions must occur where the private individual or entity is "a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Although Defendant Colon's alleged actions are horrific, there are no facts asserted here to suggest that Defendant Colon's actions were anything other than purely private conduct.
Defendant Judge Jennifer McCoy is also subject to dismissal as a defendant because she entitled to immunity from suit for all actions taken in her judicial capacity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987)[a suit by South Carolina inmate against two Virginia magistrates]; Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985)["It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions."]; see also Siegert v. Gilley, 500 U.S. 226 (1991)[immunity presents a threshold question which should be resolved before discovery is even allowed].
It is unclear what action Defendant Savas took or failed to take that harmed any of Plaintiff's constitutional or statutory rights. In any event, a prosecutor has absolute immunity for activities performed as "an officer of the court" where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009). For example, when a prosecutor "prepares to initiate a judicial proceeding," "appears in court to present evidence in support of a search warrant application," or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial "motions" hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). Such immunity also "extends to forfeiture proceedings." Russell v. Myers, No. 9:08-2893-HFF-BM, 2008 WL 4441929, at *3 (D.S.C, Sept. 30, 2008) (adopting and incorporating report and recommendation)(collecting cases); see also Bennett v. Barrat, No. 3:13-cv-128, 2014 WL 4660646, at *6 (N.D.W.Va. Sept. 16, 2014) [adopting report and recommendation finding a prosecutor absolutely immune from due process claims associated with a civil forfeiture hearing]. Any conduct Savas is alleged to have taken here was clearly performed as an officer of the Court as part of the judicial phase of the referenced criminal case.
As for the Defendant Charleston County, under the theory of municipal liability, a local government such as Defendant Charleston County may be held liable for policies and customs that deprive a person of their constitutional rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). However, municipalities or counties cannot be held vicariously liable under 42 U.S.C. § 1983 for the acts of their employees. Id. at 692. Instead, liability exists only when the execution of a municipal policy or custom inflicts the injury. Id. at 691. The Fourth Circuit has stated "that plaintiffs seeking to impose liability on a municipality must ... adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights." Semple v. Town of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999) (citation and quotation marks omitted). Plaintiff has not alleged in her Complaint the existence of a practice, policy, or custom of Charleston County that gave rise to any alleged constitutional violation.
Finally, Plaintiff appears to be attempting to assert a tort claim pursuant to South Carolina law and may be alleging claims under South Carolina statutes. However, as Plaintiff fails to state any federal claim, only these state law claims would survive, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims through the exercise of "supplemental jurisdiction." See 28 U.S.C. § 1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may otherwise have jurisdiction of a civil action "where the matter in controversy exceeds the sum or value of $75,000...and is between-(1) citizens of different States...". 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties, as Plaintiff and the Defendants are all citizens of South Carolina, see ECF No. 1 at 2-3. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) [Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side]. Since Plaintiff has asserted no valid federal claim and has not alleged diversity jurisdiction, this Court should not exercise supplemental jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002)[affirming district court's dismissal of state law claims when no federal claims remained in the case]. Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) ["[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants"].
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process.
Plaintiff is advised that this Report and Recommendation constitutes notice to her of material defects in her filings. See, e.g., Goode v. Central Va. Legal Aid Soc'y, 807 F.3d 619, 623-24 (4th Cir. 2015); Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4th Cir. April 28, 2017) [Noting that the pro se plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May 25, 2017) [same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017) [same]. Plaintiff's attention is also directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge July 10, 2019
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).