Opinion
C/A No. 9:20-3141-BHH-MHC
12-16-2020
Henry Lee Pinckney, Plaintiff, v. United States, Defendant.
REPORT AND RECOMMENDATION
This a civil action filed by a state prisoner. In the event a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to the district court). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
On October 8, 2020, an order giving Plaintiff notice to amend and advising him of pleading deficiencies was issued. ECF No. 9. Although Plaintiff filed an affidavit (ECF No. 13) on November 2, 2020, he has not filed an amended complaint.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), 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), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
However, even when considered under this less stringent standard, for the reasons set forth below, the Complaint submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
BACKGROUND
Plaintiff is incarcerated at the Lieber Correctional Institution, part of the South Carolina Department of Corrections (SCDC). Records from the SCDC indicate that Plaintiff was convicted in Colleton County, South Carolina on the charges of kidnapping, for which he is serving a sentence of life imprisonment, and criminal sexual conduct second degree, for which he is serving a sentence of twenty years' imprisonment. See http://public.doc.state.sc.us/scdc-public/ [Search Inmate "Henry Pinckney"] (last visited December 15, 2020).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, 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). Further, this Court "may properly take judicial notice of matters of public record." See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiff states that he brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for:
Deprivation of 'Jus' "Sovereign/Natural" Rights (Alien) title (18) 242-3Complaint, ECF No. 1 at 4. Plaintiff requests declaratory and monetary relief. Id. at 7.
Expatriation title (8) 1481[,] Fifth Amendment Right [and]
Eighth Amendment Right Violations - Constitutional
DISCUSSION
I. Federal Jurisdiction
This action should be dismissed because Plaintiff fails to provide a basis for federal court jurisdiction. Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Generally, a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff has not alleged diversity jurisdiction. Plaintiff asserts federal question jurisdiction based on alleged violations of constitutional rights and federal laws. However, as discussed below, Plaintiff fails to establish federal question jurisdiction.
A. Constitutional Claims
Plaintiff brings Fifth, Eighth, and Fourteenth Amendment claims against Defendant. See ECF No. 1 at 4, 5. These claims are subject to summary dismissal for lack of jurisdiction.
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff states that he brings his constitutional claims pursuant to Bivens, which is a judicially created monetary remedy designed to vindicate violations of constitutional rights by federal actors in their individual capacities. Bivens, 403 U.S. at 395-397 (1971). A Bivens claim is brought against an individual for his own acts, Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017). However, Plaintiff may not bring a claim pursuant to Bivens against the United States. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (only individual persons can be subject to Bivens liability); FDIC v. Meyer, 510 U.S. 471, 475 (1994); 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."); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) ("Any remedy under Bivens is against federal officials individually, not the federal government.").
To the extent that Plaintiff instead may be asserting that the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., is a basis for his claims, he has alleged no facts to support such a claim. Further, he has not asserted that he exhausted his FTCA administrative remedies, which must be done prior to filing an action in federal court. See 28 U.S.C. § 2675, 28 C.F.R. §14.2.
B. Federal Laws
Plaintiff also mentions several federal laws. However, merely referencing in his Complaint that certain federal laws have been violated does not render jurisdiction appropriate in this case. See Republic Finance v. Cauthen, 343 F.Supp.2d 529, 532 (N.D. Miss. 2004) (federal jurisdiction is not invoked by merely citing a federal statute) (citing Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 687 (5th Cir. 2001)). The general rules governing pleading federal jurisdiction require more than a simple allegation that jurisdiction exists or citation to a federal statute, and a mere allegation that a federal statute has been violated is not sufficient to invoke federal jurisdiction. Lopes v. Vieira, 488 F.Supp.2d 1000, 1025 (E.D. Cal. 2007); Scott v. Wells Fargo Home Mortgage, Inc., 326 F.Supp.2d 709 (E.D. Va. 2003). This is essentially what Plaintiff does in his Complaint, thereby subjecting his claims to dismissal.
Although Plaintiff cites 18 U.S.C. § 242, he fails to allege any facts under which he can bring a private right of action under this criminal statute. 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); Rockfeller v. U.S. Ct. of Appeals Office, 248 F.Supp.2d 17, 23 (D.D.C. 2003)(collecting cases) (the plaintiff was precluded from bringing a case under § 242 because there is no private cause of action under this criminal statute). Nor does § 1481, which lists ways in which a person may lose his nationality, provide a basis for any of Plaintiff's claims. See 8 U.S.C. § 1481 (Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions).
Plaintiff again attempts to assert claims (see ECF No. 1 at 5) pursuant to House Joint Resolution (HJR) 192 (1933), codified at 31 U.S.C. § 5118, which provided for the suspension of the gold standard. See Holyoke Water Co. v. American Writing Paper Co., 300 U.S. 324, 339 n.1 (1937). Litigants have argued that this joint resolution, among other things, requires the government to discharge any personal debts. Unsurprisingly, claims such as those asserted by Plaintiff based on "HJR-192 have been universally rejected by every federal court that has been presented with this theory." Estes v. Toyota Fin. Serv., No. 14-CV-1300, 2015 WL 222137, at *5 (E.D.N.Y. Jan. 13, 2015) (collecting cases); see also Gravatt v. United States, 100 Fed. Cl. 279, 283, 286-88 (2011) (discussing, and rejecting, the underlying theory).
A previous attempt by Plaintiff to bring claims pursuant to HJR 192 against the "U.S. Government - I.R.S." and various state employees was rejected. See Pinckney v. U.S. Gov't - I.R.S., No. CV 2:19-3046-BHH-BM, 2020 WL 3474011, at *4 (D.S.C. Jan. 27, 2020), report and recommendation adopted, No. CV 2:19-3046-BHH, 2020 WL 3473584 (D.S.C. June 25, 2020).
II. Failure to State a Claim
Even if Plaintiff could establish federal jurisdiction, this action is subject to summary dismissal because Plaintiff fails to state a cognizable claim against Defendant. The Complaint is fairly characterized as being composed of what some courts have described as "buzz words" or "legalistic gibberish." See, e.g., Rochester v. McKie, No. 8:11-CV-0797-JMC-JDA, 2011 WL 2671306 (D.S.C. Apr. 13, 2011), report and recommendation adopted, No. 8:11-CV-0797-JMC, 2011 WL 2671228 (D.S.C. July 8, 2011). As such, a substantial portion of Plaintiff's allegations are so generally incomprehensible or 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). 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 the 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.'").
Further, to the extent that Plaintiff is attempting to assert claims (including any claim for breach of contract under HRJ 192) based on a "sovereign citizen" type claim, such claims should be dismissed as they are frivolous. See Smalls v. Sterling, No. 2:16-4005-RMG, 2017 WL 1957471, at *1 (D.S.C. May 11, 2017); Gaskins v. South Carolina, No. 2:15-CV-2589-DCN, 2015 WL 6464440, at *4 (D.S.C. Oct. 26, 2015)(collecting cases); see also Mitchell v. Vesely, No. 5:17-CV-325-OC-30PRL, 2017 WL 11049094, *1 (M.D. Fla. Aug. 23, 2017) ("While Plaintiff does not state that he is a 'sovereign citizen,' his arguments are similar to the 'sovereign citizen' arguments that courts have routinely rejected as frivolous."). So-called sovereign citizens argue that, though they are born and reside in the United States, they are their own sovereigns and are not United States citizens. Gravatt v. United States, 100 Fed. Cl. at 282. Examples of grounds claimed for this belief include the UCC, maritime and admiralty law, the idea of strawman trusts, a "redemption theory," and Bible verses. See, e.g., United States v. Anzaldi, 800 F.3d 872, 875 (7th Cir. 2015) (describing the "redemption theory" as a "sovereign citizen-type view which ... holds that the federal government went bankrupt when it abandoned the gold standard in 1933 and began converting the physical bodies of its citizens into assets against which it could sell bonds. A tenet of this view is that knowledgeable citizens can redeem these assets and, through manipulating them in various imagined accounts, use them to their advantage."); Mason v. Anderson, No. H-15-2952, 2016 WL 4398680, at *2 (S.D. Tex. Aug. 18, 2016)(rejecting sovereign citizen's claim, grounded in the UCC, maritime and admiralty law, strawman trusts, and Bible verses, that he was not subject to the laws of the State of Texas). Sovereign citizens often attempt to use these arguments to "avoid paying taxes, extinguish debts, and derail criminal proceedings." Gravatt, 100 Fed. Cl. at 282; see also U.S. v. Delatorre, No. 03 CR 90, 2008 WL 312647, at *2 (N.D. Ill. 2008). Plaintiff cannot claim to be a sovereign independent of governmental authority while simultaneously asking the judicial system to grant him recourse. See, e.g., Mason v. Anderson, 2016 WL 4398680, at *2.
RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993). As noted above, Plaintiff was advised of material defects in his complaint, see ECF No. 9, but he failed to file an amended complaint or otherwise cure the defects in his Complaint.
Plaintiff's attention is directed to the important notice on the following page.
/s/_________
Molly H. Cherry
United States Magistrate Judge December 16, 2020
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).