Opinion
C. A. 9:23-05068-DCC-MHC
06-04-2024
John Anthony Michael Williams, Plaintiff, v. Chief Alonzo Thompson, Sheriff Chuck Wright, Jessica Clerk, Hope Hicks, Unknown Name Agents of Metro COPS, Unknown Name Agents of Securus Technologies Phone Company, Jessica Jackson, Unknown Named Agents of GBI, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff John Anthony Michael Williams, a pretrial detainee who is proceeding pro se and in forma pauperis, brings this action against Defendants, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 (§ 1983). 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.
Plaintiff states that he brings his claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See ECF No. 9 at 6. However, his claims are construed as being brought under § 1983 because none of the Defendants are federal officials.
In a Proper Form Order dated March 25, 2024, Plaintiff was directed to provide certain documents to bring his case into proper form. He was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 5. Plaintiff has not provided all of the required proper form documents, as discussed further below. He filed an Amended Complaint on April 15, 2024. ECF No. 9.
I. BACKGROUND
Plaintiff is a pretrial detainee at the Spartanburg County Detention Center (SpCDC). Records from Spartanburg County indicate that Plaintiff has pending charges, with an arrest date of July 15, 2021, for domestic violence of a high and aggravated nature (case number 2021A4210203636), possession of a weapon during a violent crime (2021A4210203637), and pointing and presenting a firearm at a person (2021A4210203638). He was also arrested on June 2, 2022, for contraband (2022A4210203316), and on April 18, 2023, for assault and battery-first degree (2023A4210202060). Additionally, Plaintiff has charges from October 2023 for assault/attempted murder (2023A4210205593), and an arrest on December 24, 2023, for prisoners/contraband (2023A4210206989). See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/PISearch.aspx [search by the case numbers listed above] (last visited June 3, 2024).
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
In his Amended Complaint, Plaintiff brings claims under § 1983 for alleged violations of his First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, Thirteenth, and Fourteenth Amendment rights. ECF No. 9 at 6. He alleges that the incidents occurred from September 2021 to April 2024 at the SpCDC. ECF No. 9 at 9.
Plaintiff's allegations concern a “mind listener” or “listen up” device.” He contends that Defendant Sheriff Chuck Wright (Wright) of the Spartanburg Sheriff's Department and Chief Alonzo Thompson (Thompson) of the Spartanburg City Police Department allowed the use of a mind listener at the SpCDC to perform illegal investigations, scientific experiments, sleep studies, sleep interrogation, hypnosis, searches for future dangerous acts of violence, and torture through use of sound and pressure waves from the mind listener. He alleges that Wright and Thompson allowed other Defendants to also use the mind listener to listen to Plaintiff's thoughts, interrogate him, assault him, prevent him from practicing his religion, look for paranormal activity, and see if he had spiritual ability and prophesies. ECF No. 9 at 7-8, 11-14. Plaintiff claims that Defendants pulled “body mass and brain mass out of [his] head and body and tried to fill up his head with other Inmates['] brain mass to see if it would make [Plaintiff] think different.” Id. at 13.
Plaintiff has two other actions pending in this Court. In case number 9:24-00876-DCC-MHC, he brings claims against Defendants Lt. Pilgram and Sgt. Aikens for an alleged excessive use of force incident in October 2023. In case number 9:23-4663-DCC-MHC, he appears to bring claims about the use of a mind listener, medical claims, and religious claims. It appears that some of Plaintiff's claims against Defendant Wright in this action may be duplicative of claims Plaintiff raises against Wright in case number 9:23-4663-DCC-MHC.
Plaintiff claims that Defendants' use of the mind reader on him caused hearing, vision, and memory loss; speech problems; swelling in his head, forehead, and throat; stomach problems; mass weight loss; altered facial features; loss of brain and muscle mass; and lumps all over his head. ECF No. 9 at 10. He appears to request monetary damages and that Defendants be criminally prosecuted. See id.
A private citizen such as Plaintiff has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (A private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person); Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (applying Linda R.S. v. Richard D. and collecting cases); Collins v. Palczewski, 841 F.Supp. 333, 340 (D. Nev. 1993) (“Long ago the courts of these United States established that ‘criminal statutes cannot be enforced by civil actions.'”).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed 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), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint 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, 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”).
III. DISCUSSION
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Failure to State a Claim/Frivolous Claim
This action is subject to summary dismissal because Plaintiff fails to state a cognizable claim against Defendants. 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 the plaintiff's suit as frivolous where allegations were conclusory and nonsensical on their face).
Plaintiff's claims appear to be based on his assertion that Defendants have allowed the use of a mind listener that allows them to read his thoughts and predict his behavior. He claims he has suffered medical problems from the alleged use of the device. However, these claims are frivolous and should be summarily dismissed. Numerous other courts have considered claims concerning alleged mind reading devices and have found such claims to be fanciful, fantastic, irrational, insane, delusional, and/or implausible. See, e.g., Lee v. Clinton, 209 F.3d 1025, 1025 (7th Cir. 2000) (affirming district court's dismissal of frivolous complaint, where the plaintiff “filed two insane complaints charging the United States and China with a conspiracy to ‘bio-chemically and bio-technologically infect and invade' various people including [the plaintiff] with a mind reading and mental torture device[.]”); Taylor v. Oliver, No. 523CV00337TESCHW, 2023 WL 8283612 (M.D. Ga. Nov. 30, 2023) (recommending summary dismissal of claims that the Georgia Department of Corrections and other inmates were using a military grade scanner to spy on the plaintiff and read his thoughts because these claims failed “to satisfy the minimal standards of rationality required at the preliminary screening stage” as they were “fanciful, fantastic, irrational, and/or delusional”), report and recommendation adopted, No. 523CV00337TESCHW, 2023 WL 8830586 (M.D. Ga. Dec. 21, 2023); Watson v. Broward Cnty. Sheriff Off., No. 21-CV-60361-RAR, 2021 WL 736412 (S.D. Fla. Feb. 25, 2021) (dismissing complaint for failure to state a claim and frivolousness, finding that the plaintiff's allegations of “mind reading machines” that were allegedly designed to “circumvent the Fourth Amendment proscription against unreasonable searches and seizure” defied reality and were implausible and defied reality); Payne v. Contra Costa Sheriff's Dep't, No. C 02-2382CRB(PR), 2002 WL 1310748, at *1 (N.D. Cal. June 10, 2002) (dismissing claim that a sheriff's department was using telepathy/mind control to harass and torture the plaintiff); Manco v. Does, No. 08-3205-SAC, 2009 WL 2356175, at *5 (D. Kan. July 29, 2009) (finding on frivolity review that prisoner's claims that government and prison officials implanted and manipulated plaintiff with mind-reading and thought and behavior-controlling devices were “wholly incredible and delusional and hence factually frivolous.”).
Plaintiff generally alleges that his First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and Twelfth Amendment rights were violated. ECF No. 1 at 5. Although he appears to assert facts concerning alleged violations of his Fourteenth and First Amendment rights by the mind reader, Plaintiff does not allege any facts to state a claim that his other constitutional rights were violated. Moreover, all of these claims are frivolous, as discussed above.
To the extent Plaintiff may be attempting to assert an Eighth Amendment cruel and unusual punishment claim, a pretrial detainee cannot be subject to any form of “punishment,” such that the Eighth Amendment does not apply and instead any claims are considered under the Fourteenth Amendment. See Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021).
Any Ninth Amendment claim also fails and should be summarily dismissed because this amendment “has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation.” Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (rejecting Navy civilian engineer's Ninth Amendment claim arising out of allegedly improper investigation and discharge), cert. denied, 503 U.S. 951 (1992); see also Dyson v. Le'Chris Health Sys., Inc., No. 4:13-CV-224-BO, 2015 WL 134360, at *3 (E.D. N.C. Jan. 9, 2015) (the Ninth Amendment provides “no independent constitutional protection ... which may support a § 1983 cause of action.” (citations omitted)). “The Ninth Amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986); see also Wohlford v. U.S. Dep't of Agriculture, 842 F.2d 1293, 1988 WL 24281, at *1 (4th Cir. 1988) (unpublished table decision) (citing Strandberg).
To the extent any Tenth Amendment claim is raised, it should be dismissed because this amendment “creates no constitutional rights cognizable in a civil rights cause of action.” Strandberg, 791 F.2d at 744; see also Stone v. City of Prescott, 173 F.3d 1172, 1175 (9th Cir. 1999) (“Plaintiffs cannot found a [§] 1983 claim on the Tenth Amendment because it is neither a source of federal authority nor a fount of individual constitutional rights.”). Nor can Plaintiff bring a claim against Defendants under the Eleventh Amendment which provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
Additionally, Plaintiff has not alleged any facts to state a Thirteenth Amendment claim. The Thirteenth Amendment declares that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the parties shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1. However, Plaintiff fails to allege facts to indicate that Defendants required him to endure slavery or involuntary servitude “by the use or threatened use of physical or legal coercion.” United States v. Kozminski, 487 U.S. 931, 948 (1988); see also Crummie v. Robinson, No. 221CV00766MLGMGB, 2021 WL 10342365 (D.S.C. Nov. 19, 2021), report and recommendation adopted, No. 2:21-CV-00766-MGB, 2023 WL 2500285 (D.S.C. Mar. 14, 2023). None of Plaintiff's allegations suggest that any of the Defendants physically forced Plaintiff to work, or threatened him with violence if he did not, or otherwise subjected him to involuntary servitude.
B. Prosecutorial Immunity - Defendant Hicks
Plaintiff alleges that Defendant Hope Hicks (Hicks), a prosecutor for Spartanburg County, used the mind listener to investigate him. Hicks should be summarily dismissed as a defendant because she is entitled to prosecutorial immunity. Prosecutors have absolute immunity from damages 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); Here, Plaintiff is attempting to assert claims against Defendant Hicks based on her participation in Plaintiff's criminal proceedings. Thus, his claims against Defendant Hicks are barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”).
C. Unknown Name Agents of Securus Technologies Phone Company is not a State Actor
Plaintiff has named Unknown Name Agents of Securus Technologies Phone Company (Securus) as a Defendant. He claims that Defendants Wright and Thompson “allowed [Securus] to listen to [his] calls and to drop [his] calls and reroute them to [deputies] and [Securus] workers who pretend[ed] to be [his] love[d] ones, are the people [Plaintiff was] calling to interrogate [him] about [his] case and about these cell phones and other crimes.” ECF No. 9 at 14. Plaintiff claims that unidentified agents of Securus dropped his phone calls and rerouted them in an effort to learn more about his criminal cases.
Plaintiff fails to allege any facts to indicate that any agents of Securus are state actors subject to suit under § 1983. 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).
Plaintiff has not alleged facts to indicate that Defendant Unknown Named Agents of Securus is a state actor under § 1983. Moreover, he has not alleged any facts to indicate he has a subjective or objective expectation of privacy in phone calls made on prison telephones. United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996); see also United States v. Clark, 651 F.Supp. 76, 81 (M.D. Pa. 1986) (finding prisoners do not have a legitimate expectation of privacy in prison telephone conversations because prisons routinely monitor and record phone conversations to enhance security); United States v. Lewis, No. 02-20449 MAV, 2011 WL 6826663 (W.D. Tenn. Dec. 1, 2011), report and recommendation adopted sub nom. United States v. Petties, No. 0220449, 2011 WL 6826656 (W.D. Tenn. Dec. 28, 2011) (“[D]efendants have no reasonable expectation of privacy in non-attorney telephone calls made from detention centers once a defendant has received notice of monitoring and recording of such calls.”); Commonwealth v. Fitzpatrick, 977 N.E.2d 505, 523 (Mass. 2012) (detainee had no privacy interest in the contents of telephone calls made from jail, where all parties to the recorded conversation had notice that the call would be monitored or recorded).
D. Eleventh Amendment Immunity
Plaintiff brings claims against Defendants Wright and Jessica Clerk (Clerk) in their official capacities only. ECF No. 9 at 3. Defendant Wright is an employee of the Spartanburg County Sheriff's Office and Clerk is an employee of the Greater Mental Health of Simpsonville (part of the South Carolina Department of Mental Health).
See Greater Greenville Mental Health Center, www.greatergreenvillemhc.com (last visited June 3, 2024).
Under the Eleventh Amendment, federal courts are barred from hearing claims for monetary damages against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to actions ‘against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. at 58. Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
The Eleventh Amendment bars a claim against Defendant Wright in his official capacity because sheriff's departments in South Carolina are state agencies, not municipal departments, and sheriffs and their deputies are state employees. See Edwards v. Lexington Cnty. Sheriff's Dep't, 688 S.E.2d 125, 127 n.1 (S.C. 2010) [“[U]nder South Carolina law, the sheriff and sheriff's deputies are State, not county, employees.”]. Monetary claims against Defendant Clerk in her official capacity are barred because she is an employee of a state agency. See, e.g., Scott v. Jones, No. 5:13-CV-2870 DCN, 2014 WL 4823850 (D.S.C. Sept. 25, 2014) (employee of the Department of Mental Health entitled to Eleventh Amendment immunity).
E. Failure to Bring Case into Proper Form
Additionally, Plaintiff has failed to bring this case into proper form. In the Court's Proper Form Order, Plaintiff was given the opportunity to bring his case into proper form by providing a completed summons form listing all the Defendants and their addresses for service and a completed and signed Form USM-285 for each Defendant. Plaintiff failed to provide all the required proper form documents.
Specifically, Plaintiff failed to provide addresses for service on his summons form for Defendants Hicks, Clerk, and Jessica Jackson. He listed Metro COPS (presumably for Defendant Unknown Name Agents of Metro COPS) and Securus (presumably for Defendant Unknown Name Agents of Securus) on the summons form, but failed to provide addresses for service. He failed to list Defendant Unknown Named Agents of GBI on the summons form and did not provide an address for service of this Defendant. ECF No. 10 at 1. Plaintiff also failed to provide fully completed and signed Forms USM-285 for Defendants Unknown Name Agents of Securus (he improperly provided a post office box address and no street address), GBI Unknown Named Agents (he provided no address for this Defendant), and Jessica Jackson (he provided no address for this Defendant). See ECF No. 10 at 7, 9, 10; see also ECF No. 3.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide all the required items to bring his case into proper form. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that this action be dismissed without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
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).