Opinion
Case No. 2:18-cv-2467-MBS-MGB
10-05-2018
Anthony G. Bryant, Plaintiff, v. Federal Communication Commission, Social Security Administration Department of Justice, and Federal Deposit Insurance Corp. , Defendants.
REPORT AND RECOMMENDATION
Anthony Bryant ("Plaintiff") is a nonprisoner litigant who is proceeding pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. §636(b)(1) and Local Civil Rule 73.02(B)(2)(D.S.C.), the United States Magistrate Judge is authorized to review the record and to submit findings and recommendations to the United States District Judge. Upon review, the Magistrate Judge recommends that the Amended Complaint (DE#9) should be summarily dismissed with prejudice, and without issuance and service of process, for the following reasons:
I. Relevant Law
A. Liberal Construction
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
B. Standard of Review
Upon application, an indigent litigant may commence an action "in forma pauperis" in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon 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 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). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke, 490 U.S. at 326. "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Id.
C. Inherent Authority to Dismiss Frivolous Case
The United States Supreme Court has observed that federal district courts possess inherent authority to dismiss a frivolous case. See Mallard v. United States District Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) ... authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); see also Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) (holding that federal district courts may dismiss claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit").
Consistent with such authority, the Fourth Circuit Court of Appeals has held that "frivolous complaints are subject to summary dismissal pursuant to the inherent authority of the court." Ross v. Baron, 493 F.App'x 405, 406 (4th Cir. Aug. 22, 2012); and see, e.g., Cabbill v. United States, Case No. 1:14-cv-4122-JMC-PJG, 2015 WL 6905072, *5 (D.S.C. Nov. 9, 2015) (same), appeal dism'd, 2016 WL 1085106 (4th Cir. Mar. 21, 2016); Anderson v. Patterson, Case No. 6:16-761-MGL-JDA, 2016 WL 1743095 (D.S.C. April 12, 2016), adopted by 2016 WL 1732763 (D.S.C. May 2, 2016). "A suit is frivolous if it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009).
Therefore, the present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See e.g., Carter v. Ervin, Case No. 0:14-cv-00865-TLW-PJG, 2014 WL 2468351, *3 (D.S.C. June 2, 2014), appeal dism'd, 585 F.App'x 98 (4th Cir. 2014); Mayhew, 2014 WL 468938 at *1, fn.1 (exercising inherent authority to summarily dismiss a frivolous case).
II. Allegations
In his Complaint (DE# 1), Plaintiff named the following four federal agencies as Defendants: the Federal Communications Commission ("FCC"), Social Security Administration, Department of Justice, and Federal Deposit Insurance Corp. ("FDIC"). He checked the box for federal question jurisdiction and stated that the basis for jurisdiction as: "Communication Decency Act, Email Privacy Act, Cloud Act 2018, U.S.A. Freedom Act." (Id. at 3, ¶ II).
The Complaint's "Statement of the Claim" consisted of the following (verbatim):
Communication Decency Act, Cloud Act, Identity Theft and Assumption Deterrence Act of 1998, 116109 Social Security Administration 2008 Bank of America, Charlotte NC.(DE# 1 at 5, ¶ III). For relief, Plaintiff stated the following (verbatim):
Federal Communication Commission Articles in Post and Courier, Bank of America lending to Communication Decency Act, Cloud Act. U.S. Patriot via IRS 6109 "Order" 177,531.00 + treble(Id. at 5, ¶ IV "Relief").
Plaintiff also attached 44 pages of supporting documents of no discernible relevance. (DE# 1-1). They include: the Spanish and English language versions of the Comcast Service Protection Plan Terms and Conditions (at 1-2); a 2013 FOIA response by the FCC indicating that "the records you seek are not within the Commission's jurisdiction" (at 3); copies of some 2013 emails (at 4-5); a certification form (at 6); an envelope (at 7); a letter from the Sheriff's Department about a public information session (at 8); a newspaper article (at 9); a 2013 DOJ FOIA response (at 10-11); an "award continuation sheet" (at 12); a 2016 tax notice (at 13); a Comcast document (at 14); a 2012 Public Service Commission letter regarding a public hearing for a rate increase (at 15); the cover of a book by Michael Chertoff (at 16); a 2009 Social Security receipt for his application for a Social Security card, with illegible scribbling in the margins (at 17-19); a letter indicating he had not renewed his real estate license for 2010-2012 (at 22); a copy of 2008 traffic ticket (at 23); a SC-DVM page regarding suspension of Plaintiff's vehicle insurance (at 25); some tax notices to Plaintiff (at 28-30); a copy of his telephone bill (at 43); and various other documents that have no discernible relevance to the Complaint or any claim actually before this Court.
Plaintiff has filed many of these same documents in his other seven cases pending before this Court. See Case Nos. 2:18-cv-606-MBS, Bryant v. Internal Revenue Service, et al; 2:18-cv-607-MBS Bryant et al v. Internal Revenue Service, et al.; 2:18-cv-1436-MBS-MGB, Bryant v. Environmental Protection Agency, et al; 2:18-cv-2159-MBS-MGB, Bryant v. U.S. Dept. of Transportation, et al; 2:18-cv-2217-MBS-MGB, Bryant v. U.S. Dept. of Educ., et al; 2:18-cv-2582-MBS-MGB, Bryant v. U.S. Marshal, et al; and 2:18-cv-2593-MBS-MGB, Bryant v. U.S. Dept. of Interior, et al.
This Court gave Plaintiff the opportunity to amend his pleading. (DE# 6, Proper Form Order of 09/07/2018). Plaintiff filed an Amended Complaint. (DE# 9). Plaintiff named the same four federal agencies as Defendants: the FCC, Social Security Administration, the Department of Justice, and the FDIC. (DE# 9). He checked the box for federal question jurisdiction and stated the basis for jurisdiction as: "Communication Decency Act, Cloud Act 2018, Community Reinvestment Act 1977, Identity Theft and Assumption Act 18 U.S.C. § 1028, Cloud Act, Email Privacy Act, U.S.A. Act." (Id. at 2, ¶ II).
The Amended Complaint's "Statement of the Claim" consists of the following (verbatim):
Communication Decency Act, Identity Theft and Assumption Act, Cloud Act, U.S.A. Act, Email Privacy Act, International Communications Privacy Act, Community Reinvestment Act 1977.(DE# 9 at 4, ¶ III, "Statement of the Claim"). For relief, Plaintiff states (verbatim):
November 6, 2009 IP theft social Security Administration, South Carolina Health and Environmental Control, Political, Economical August 6, 2010, physical reprisal Justice Department(Id. at 4, ¶ IV, "Relief"). Plaintiff attaches 19 pages of documents to his Amended Complaint. (DE# 9-1). These include: a newspaper article about cellphones in prisons (at 1); a DOJ release form (at 2-3); a 2009 Social Security notice providing Plaintiff with an application for a S.S. card (at 4); an envelope marked "return to sender" (at 5); a 2010 DOJ letter acknowledging receipt of Plaintiff's letter about the "effects of the Charleston County Incinerator" (at 6); a 2014 letter from the Freedom of Information Center (at 7); a 2013 DOJ letter indicating that Plaintiff's request for records "did not reasonably describe the subject of [his] request" (at 8-9); a similar 2013 letter from DOJ/ATF (at 10); a letter from the Supreme Court of South Carolina in response to Plaintiff's request for materials (at 11); several newspaper articles (at 12-13); a copy of several 1994 letters from Mayor Riley to various banks regarding affordable housing and economic development in Charleston (at 14-18); and a letter from the "COBRA Human Services Agency" to the Trident Community Foundation (at 19).
III. Discussion
Review of the Amended Complaint reflects multiple grounds for summary dismissal.
A. Failure to State a Claim
The United States Supreme Court has made it clear that more than conclusory statements are required to state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009). A plaintiff must allege specific facts that adequately support the claim. Id. The present Complaint fails to state any factual or legal basis for any federal claims. Although courts give "liberal construction" to pro se pleadings, the Fourth Circuit Court of Appeals has emphasized that federal courts may not "ignore a petitioner's clear failure to allege facts that set forth a cognizable claim." Wilson, 699 F.3d at 797.
The allegations of the Plaintiff's Amended Complaint are nonsensical and incoherent. Plaintiff does not allege any supporting facts that suggesting any constitutional violation or any violation of federal law. The Complaint consists of disjointed phrases that fail to state any sort of coherent claim. Even liberally construing the allegations of the pro se Plaintiff's Complaint, it is not possible to discern any plausible claims from the disconnected sentence fragments in it. The Fourth Circuit Court of Appeals has emphasized that "[p]rinciples requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278. Plaintiff has also submitted dozens of additional documents that shed no light on Plaintiff's allegations, and no relevance can be discerned. (DE# 12-13, totaling 51 pages). For example, Plaintiff has submitted a letter indicating that "as a result of your decision not to pay your 2009 membership dues to the Charleston Trident Association of REALTORS, your membership was terminated December 31, 2008." (DE# 12-1 at 7). Plaintiff has filed two sets of "Objections" (DE# 14-15), even though there was no Report and Recommendation to object to when he filed them. The Objections are nonsensical.
In his basis for "Jurisdiction," Plaintiff mentions the "Privacy Act." To have a cause of action under the Privacy Act, a plaintiff must show that specific disclosures (1) violated the Act; (2) were committed willfully or intentionally; and (3) adversely affected him. See 5 U.S.C. § 552a(g)(1)(D), (g)(4); Doe v. Chao, 435 F.3d 492, 500 (4th Cir. 2006). Plaintiff has failed to state any facts that meet these elements. See, e.g., Walker v. Gambrell, 647 F.Supp.2d 529, 536 (D.Md. July 16, 2009) (dismissing pro se claim under the Privacy Act).
Plaintiff lists several other statutes, including the Communication Decency Act ("CDA"), Identity Theft and Assumption Act, Cloud Act, U.S.A. Act, International Communications Privacy Act, and Community Reinvestment Act 1977. However, Plaintiff fails to provide any supporting facts. Plaintiff refers the CDA, which is a statute that immunizes commercial interactive computer service providers from liability for defamatory information posted by third parties. Telecommunications Act of 1996, § 509(c)(1), 47 U.S.C.A. § 230(c)(1). See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. Nov. 12, 1997), cert. denied, 524 U.S. 937 (1998). Plaintiff fails to indicate what this has to do with anything in his Amended Complaint, and he states no facts that would be relevant to such statute.
Plaintiff also makes an unexplained reference to the "Cloud Act," i.e. the Clarifying Lawful Overseas Use of Data Act. See 18 U.S.C. § 2703. The Cloud Act amended the Stored Communications Act ("SCA") and provides that the obligation to comply with search warrant requirements under the SCA apply regardless of whether a communication, record, or other information was located within or outside of the United States. See United States v. Microsoft, -- U.S. --, 138 S.Ct. 1186 (April 17, 2018). Plaintiff fails to explain the purported relevance of such statute and alleges no facts that would state a claim. Even with liberal construction, the Amended Complaint fails to state any plausible claim for relief. Summary dismissal is appropriate.
B. Frivolity
The Amended Complaint appears to lack any arguable basis in law or in fact, and therefore is also subject to dismissal as frivolous. Denton, 504 U.S. at 31. Plaintiff has filed an Amended Complaint whose meaning the Court cannot discern, even with liberal construction. Plaintiff's allegations are incomprehensible. As his allegations consist of random unrelated sentence fragments and disconnected phrases, it is readily apparent that the legal deficiencies of the Complaint cannot be remedied through more specific factual pleading. Adams v. Rice, 40 F.3d 72, 76 n.1 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995). Given Plaintiff's nonsensical Complaint, irrelevant exhibits, and repetitive filings, it appears that amendment would be futile.
Given his repetitive filings and attachments, this case may be duplicative of other pending cases recently filed by Plaintiff. The Fourth Circuit Court of Appeals has instructed that "district courts are not required to entertain duplicative or redundant lawsuits and may dismiss such suits as frivolous pursuant to § 1915(e)." Cottle v. Bell, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per curiam) (citing with approval, Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992) (holding that "district courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party"); Southern Holdings, Inc. v. Horry Cty., South Carolina, Case No. 4:02-1859-RBH, 2014 WL 11071017, *6 (D.S.C. June 11, 2014) (same); Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974, *6 (D.S.C. July 28, 2015) ("the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency"), affirmed, 631 F.App'x 197 (4th Cir. Feb. 4, 2016); Reynolds v. Third Circuit Pub. Def. Office, Case No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted, 2018 WL 1124592 (D.S.C. Mar. 1, 2018) (summarily dismissing duplicate case as frivolous). Summary dismissal is appropriate.
C. Lack of Subject Matter Jurisdiction
Plaintiff's allegations are so disconnected and incoherent that it appears that subject matter jurisdiction may be lacking here. Federal-question jurisdiction requires that a party assert a substantial federal claim. Hagans v. Lavine, 415 U.S. 528, 536 (1976); see also Baker v. Carr, 369 U.S. 186, 199 (1962) (holding that if jurisdiction is based on a federal question, the plaintiff must show that he has alleged a claim under federal law that is not frivolous). Plaintiff has failed to do so. His allegations are inadequate to allege a substantial federal claim.
This federal court has an "independent obligation" to investigate the limits of its subject-matter jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The obligation to examine subject-matter jurisdiction is triggered whenever that jurisdiction is "fairly in doubt." Iqbal, 556 U.S. at 671. It is well settled that federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing jurisdiction rests upon the party asserting jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). On the pre-printed complaint form, Plaintiff checks the box for federal question jurisdiction. (DE# 9 at 2, ¶ II "Basis for Jurisdiction").
However, no cognizable basis for federal jurisdiction is apparent from the face of the pleading. See 28 U.S.C. § 1331. The allegations of the Complaint do not indicate that this case is one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff does not plausibly state any facts that would suggest a violation of any federal statute or constitutional provision by the Defendants. Even though Plaintiff appears to assert federal question jurisdiction, this court is not bound by Plaintiff's characterization of his suit because there are no facts alleged to support any federal cause of action under the statutes listed by Plaintiff.
When considering the issue of whether a case is one "arising under the Constitution . . ." or, in other words, whether "federal question" jurisdiction exists in a case, a federal court is not bound by a party's characterization of the case. District courts are authorized to disregard such characterizations to avoid "unjust manipulation or avoidance of its jurisdiction." Lyon v. Centimark Corp., 805 F. Supp. 333, 334-35 (E.D.N.C. 1992); see Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908). Cf. Gully v. First Nat'l Bank in Meridian, 299 U.S. 109 (1936) ("Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit."). Thus, even though the Plaintiff appears to assert that his Amended Complaint was filed under federal-question jurisdiction, this court may disregard such assertion because no basis for federal question jurisdiction is actually presented.
D. Sovereign Immunity
Plaintiff's Amended Complaint names four federal agencies as Defendants. It is well-settled that federal agencies are entitled to sovereign immunity unless Congress waives immunity and consents to suit. Global Mail Ltd. v. U.S. Postal Service, 142 F.3d 208, 210 (4th Cir. 1998). In other words, Plaintiff may not sue the United States or its agencies without their consent. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (holding that suit against federal agency could not proceed); Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999) ("Bivens does not allow for recovery of money damages, or suits in general, against the government itself."); Moore v. U.S. Dept. of Agric., 55 F.3d 991, 995 (5th Cir. 1995) ("Bivens-type claims cannot be brought against federal agencies"); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). Sovereign immunity deprives a court of jurisdiction. Global Mail Ltd., 142 F.3d at 210; United States v. Jones, 225 F.3d 468, 469 (4th Cir. 2000), cert. denied, 532 U.S. 1053 (2001). Such pleading deficiency cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76. Thus, the Complaint against the federal agencies is subject to dismissal based on sovereign immunity.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (establishing a cause of action against federal officials for violation of federal constitutional rights).
E. With or Without Prejudice
The only remaining question is whether to dismiss this case with or without prejudice. Plaintiff has filed an Amended Complaint that fails to state a plausible claim of any kind. The Fourth Circuit Court of Appeals has emphasized that a dismissal under Rule 12(b)(6) is generally with prejudice unless the court specifically orders that the dismissal is without prejudice (and provides an explanation for using its discretion to deviate from the general rule). Abdul-Mumit, et al. v. Alexandria Hyundai, LLC, et al, 896 F.3d 278, 2018 WL 3405474, *5 (4th Cir. July 13, 2018) (citing Carter v. Norfolk Community Hosp. Association, Inc., 761 F.2d 970, 974 (4th Cir. 1985)). Here, Plaintiff's Amended Complaint fails to state a claim for which relief may be granted, is legally and factually frivolous, and seeks monetary damages against federal defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). For all these reasons, the Amended Complaint is subject to dismissal with prejudice.
"Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009); Carter, 761 F.2d at 974 ("A district court's dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice."). Here, given that Plaintiff's Amended Complaint is legally frivolous, the deficiencies in it cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76 n.1 (holding that dismissal with prejudice was therefore appropriate). The Fourth Circuit Court of Appeals has explained that "[o]nce a court has determined that the complaint is truly unamendable, a dismissal without prejudice is of little benefit to the litigant, as the claim cannot be made viable through reformulation." McLean, 566 F.3d at 399. Plaintiff's Amended Complaint refers to some federal statutes, but his Amended Complaint is so incoherent that subject matter jurisdiction may be lacking here. Thus, alternatively, the District Court would be within its discretion to dismiss this case without prejudice for lack of subject matter jurisdiction.
IV. Conclusion
In conclusion, the Amended Complaint fails to state a claim for which relief may be granted, is legally and factually frivolous, and seeks monetary damages against federal defendants who are immune from such relief. See 28 U.S.C. §1915(e)(2)(B). For all these reasons, the Plaintiff's Amended Complaint is subject to dismissal with prejudice. Alternatively, the Plaintiff's Amended Complaint appears to be so incoherent that subject matter jurisdiction may be lacking here. Absent subject matter jurisdiction, dismissal without prejudice would be appropriate in this situation.
V. Recommendation
Accordingly, it is recommended that the Amended Complaint (DE#9) should be summarily dismissed with prejudice, and without issuance and service of process; alternatively, if the District Judge determines that subject matter jurisdiction is lacking, the Amended Complaint may be dismissed without prejudice, and without issuance and service of process.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE October 5, 2018
Charleston, South Carolina Plaintiff's attention is directed to the Important Warning on the following page:
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).