Opinion
C/A No.: 3:18-1860-JFA-SVH
07-16-2018
Frank Brett, Plaintiff, v. Robin Blume; Mrs. Lee; David Samson; Bill Naulty; David Wildstein; Bill Baronse; Bridget Kelley; Jaimie Fox; Christine Sabel (Summer); John Morgan, Attorney; Ricky Gertz; Wolfand Samson, Attorney; John Runyan; Leonard Lavender; Steve Lavender; Joe Byers; Mr. Brand; Robert Rockwell; Louis Vasquez; Joe Arice Gany; Rev. Hall, Orlando FL. Rescue Mission; Rev. Wheeler Floyd, Sunday Breakfast Mission, Wilmington, Delaware; Sam Clay; Rev. Sam Reah, Philadelphia; US Marshall John Unknown, Columbia, SC; Vincent Marcial and Louis Hurdal Law Firm; Shansha Construction Co.; Mr. Schneider; Sue Bodkin; Kathy Bodkin; Richard Quick; Nichole Lapata; Floyd Wheeler; Rev. Rodgers; Rev. Aubry; Rev. Ali; Mike Halrston, (FBI Agent - Cousin); Mr. Man; Mr. Jones, US Marshall Black Man; US Marshall Black Man Unknown; Mr. Seal; Anthony Svoozie; John White; and Oliver Mission, Boss, Employees & some Residents, Defendants.
REPORT AND RECOMMENDATION
Frank Brett ("Plaintiff"), proceeding pro se, filed this complaint against the United States clerks of court, marshals, and congressman, corporate entities, state employees, private individuals, attorneys, and law firms, and FBI agents. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the complaint without prejudice and without issuance and service of process. I. Factual and Procedural Background
Plaintiff filed an 82-page complaint which is largely comprised of incoherent and unintelligible allegations discussing events spanning a period of approximately 25 years. [ECF No. 1]. Plaintiff makes conclusory statements that crimes were committed against him and that various persons, including employees of the United States Marshal Service, harassed and threatened him. Id. Plaintiff also states the United States Clerks of Court, Marshals, and Attorneys conspired to prevent him from successfully pursuing his civil cases. Id. Plaintiff claims defendants stalked him in at least six different states, told lies about him, and called him gay. Id. Plaintiff seeks three million dollars in damages. Id. at 5. II. Discussion
A. Standard of Review
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that an action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists "and to dismiss the action if no such ground appears." Id. at 352; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) ("[P]laintiffs must affirmatively plead the jurisdiction of the federal court."). To this end, Fed. R. Civ. P. 8(a)(1) requires that the complaint provide "a short and plain statement of the grounds for the court's jurisdiction[.]" When a complaint fails to include "an affirmative pleading of a jurisdictional basis[,] a federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded." Pinkley, 191 F.3d at 399 (citations omitted). However, if the court, viewing the allegations in the light most favorable to a plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction. Id.
Plaintiff alleges the court has subject matter jurisdiction over his claims pursuant to federal question jurisdiction, 28 U.S.C. § 1331, which provides that: "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." [ECF No. 2]. "[A] claim of federal question jurisdiction is to be resolved on the basis of the allegations of the complaint itself." Burgess v. Charlottesville Sav. and Loan Ass'n, 477 F.2d 40, 43 (4th Cir. 1973). Therefore, a complaint must "contain allegations 'affirmatively and distinctly' establishing federal grounds 'not in mere form, but in substance' and 'not in mere assertion, but in essence and effect.'" Id. (citing Cuyahoga Co. v. Northern Ohio Co., 252 U.S. 388, 397 (1920)). "[T]he mere assertion in a pleading that the case is one involving the construction or application of the federal laws does not authorize the District Court to entertain the suit." Malone v. Gardner, 62 F.2d 15, 18 (4th Cir. 1932).
Plaintiff states the court has jurisdiction over his claims pursuant to 18 U.S.C. § 371, conspiracy to commit offense or to defraud United States. [ECF No. 1 at 3]. However, Section 371 is a criminal statute that provides criminal penalties, but does not give rise to civil liability. See, e.g., Andrews v. Heaton, 483 F.3d 1070, 1076 (7th Cir. 2007) (holding violations of criminal statutes such as 18 U.S.C. § 371 are not enforceable through a civil action); Rockefeller v. U.S. Court of Appeals Office for Tenth Circuit Judges, 248 F. Supp. 2d 17, 23 (D.D.C. 2003) (dismissing claim brought pursuant to 18 U.S.C. §§ 242, 371 "because, as criminal statutes, they do not convey a private right of action"). Because the court does not have subject matter jurisdiction over Plaintiff's claims under § 1331, Plaintiff's complaint is subject to summary dismissal.
Plaintiff's complaint also fails to demonstrate sufficient facts to satisfy the requirements of 28 U.S.C. § 1332, as Plaintiff and at least one of the defendants are citizens of the same state. Accordingly, the court does not have diversity jurisdiction over this matter.
The undersigned finds Plaintiff cannot cure the deficiencies of his complaint through amendment, as his complaint is composed of nonsensical statements that fail to state a federal cause of action. Federal judges are not pigs searching for truffles. Federal courts are not required to be "mind readers" or advocates for pro se litigants when construing pro se pleadings, see Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), and the court may dismiss a complaint as frivolous where it lacks an arguable basis in law or in fact. Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (noting a federal court lacks subject matter jurisdiction over a complaint raising claims "'so insubstantial, implausible . . . or otherwise completely devoid of merit as not to involve a federal controversy'") (citation omitted). Accordingly, the court finds any amendment would be futile. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court dismiss the complaint without prejudice and without issuance and service of process.
IT IS SO RECOMMENDED. July 16, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).