Opinion
C. A. 3:22-4049-MGL-PJG
12-09-2022
Dora Staley, Plaintiff, v. US Department of Justice; Attorney General Merrick Garland, Defendants.
REPORT AND RECOMMENDATION
Paige J. Gossett, United States Magistrate Judge
Plaintiff Dora Staley, proceeding pro se, brings this civil action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Complaint in accordance with applicable law, the court concludes that this case should be summarily dismissed without prejudice and issuance and service of process.
I. Factual and Procedural Background
Plaintiff alleges that for that last seventeen years, the Defendant United States Department of Justice (“DOJ”) has failed to protect her from a corrupt Lexington County Sheriff and gang members who shoot at her and threaten her and her family. Plaintiff also claims that DOJ has wiretapped and bugged her home and workplaces and placed listening devices in the homes of all her neighbors, who listen to everything she does. She brings this action pursuant to 42 U.S.C. § 1983 and 18 U.S.C. §§ 241-242 for violations of her privacy, seeking damages. This is the third such lawsuit filed by Plaintiff about this subject, though each lawsuit has been brought against different defendants. See C/A No. 1:19-2829; C/A No. 3:18-2962.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. The court possesses the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the complaint is not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. 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to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (unpublished) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the ‘defenses' a party might either make or waive under the Federal Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without issuing a summons or following other procedural requirements).
Plaintiff paid the filing fee in this case. (ECF No. 1.)
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (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”).
B. Analysis
Plaintiff expressly brings this action pursuant to 42 U.S.C. § 1983, which “ ‘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)). To state a claim under § 1983, a plaintiff must allege: (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). However, the United States, its agencies, or its officials, are not amenable to suit pursuant to § 1983. See Hindes v. F.D.I.C., 137 F.3d 148, 159 (3d Cir. 1998). Because Plaintiff names only a federal agency and federal official as defendants, § 1983 is not applicable here.
But, liberally construing the Complaint in light of Plaintiff's pro se status, the court construes it as asserting claims pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United States Supreme Court established a remedy for plaintiffs alleging certain constitutional violations by federal officials to obtain monetary damages in suits against federal officials in their individual capacities. Id. Based on Bivens, courts have recognized that neither federal agencies nor federal officials in their official capacities can be sued for monetary damages in a Bivens action. F.D.I.C. v. Meyer, 510 U.S. 471, 483-86 (1994) (holding that a Bivens action cannot lie against a federal agency); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (observing that “a Bivens action does not lie against either agencies or officials in their official capacity”); 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.”). Therefore, as Plaintiff seeks only damages in this case, the only plausible defendant in a Bivens action for damages would be Attorney General Merrick Garland, in his individual capacity.
To the extent Plaintiff seeks to sue DOJ or the Attorney General in his official capacity, the federal government is generally immune to suits for damages, and Plaintiff does not indicate that she seeks to file a damages claim pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, 1346(b), which provides a limited waiver of the United States's immunity. Moreover, Plaintiff fails to indicate that she exhausted her administrative remedies under 28 U.S.C. § 2675, a jurisdictional prerequisite to suit. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990).
However, even assuming a Bivens remedy exists for the claim raised by Plaintiff, the court concludes that Plaintiff's Complaint is frivolous. See Denton v. Hernandez, 504 U.S. 25, 31 (1992) (providing that a claim is frivolous if “it lacks an arguable basis either in law or in fact”) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Plaintiff fails to plead any plausible facts that suggest how she knows that her house is bugged or that DOJ or the Attorney General are responsible for the activities of gang members or others that she believes are threatening her.Therefore, she does not plausibly allege that the named defendants have violated any type of legally protected interest-whether constitutional or statutory-that could give rise to a legal cause of action.
The United States Supreme Court has sharply limited the availability of Bivens claims to a narrow class of causes of action based on violations of certain constitutional amendments. See Egbert v. Boule, 142 S.Ct. 1793, 1809 (2022); Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017). Plaintiff also cites to 18 U.S.C. §§ 241-242, criminal statutes that do not provide private rights of action for damages themselves.
Thus, even assuming Plaintiff intended to bring this case pursuant to the Federal Wiretapping Act, 18 U.S.C. § 2520, Plaintiff fails to plead a plausible claim that the defendants intercepted, disclosed, or used her information in an unlawful manner. See generally Sanders v. Robert Bosch Corp., 38 F.3d 736, 739 (4th Cir. 1994).
III. Conclusion
Accordingly, the court recommends that this case be summarily dismissed without prejudice and issuance and service of process.
Plaintiff's attention is directed to the important notice on the next 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 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).