Opinion
C/A No. 2:17-1004-RMG-BM
10-26-2017
Reginald Gerrill Toomer Bey, Plaintiff, v. Magistrate John Duff, Sergeant Steven Evans, N. Charleston Police Department, N. Charleston Municipal Court, Defendants.
REPORT AND RECOMMENDATION
This is a civil action filed by the Plaintiff, Reginald Gerrill Toomer Bey, also known as Reginald Gerrill Toomer, pro se, and is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915, 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) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Background
Plaintiff originally filed a partially completed and unsigned Complaint for a Civil Case form with attachments. ECF Nos. 1 and 1-1. He then filed additional attachments to the Complaint on June 29, 2017 (ECF No. 1-2) and October 19, 2017 (ECF Nos. 1-3, 1-4, 1-5, and 1-6). Plaintiff asserts that the bases for jurisdiction in this Court are federal question and diversity of citizenship, while in response to the question on the Complaint form requesting him to list the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that are at issue in this case, Plaintiff listed:
Treaty of Pace and Friendship 20, 21, U.S. Code 1590 Title 18 241, 242 US. Constitution Articles 4,5,6, The Rights of Indigenous Articles 11, 15, 2, 24, 8, 3, 4, 6, 14.ECF No. 1 at 3 [errors in original]. In the "Statement of Claim" portion of the Complaint form, Plaintiff writes:
Policeman C. Ivory asked for license I replied that I did not need one [apparently because Plaintiff identifies himself as a "Moorish-American"] I call for Assistance with the automoble accident and I gave C. Ivory the Document from the department of Transportation addressed to acting Governor of the State of South Carolina on right to travel.ECF No. 1 at 5 [errors in original]. Plaintiff requests "that all colorable charges be dissmiss and the protection of my Rights to travel on my land." ECF No. 1at 5 [errors in original]. Plaintiff also requests monetary and other relief. See id., ECF No. 1-2.
Plaintiff instead presented a self-made Moorish-American identification card (see ECF No. 1-6, at 2) along with another document that Plaintiff alleges gave him a "right to travel". See ECF No. 1-1, p. 4.
A review of the records from Charleston County reveals that charges for driving without a license, 1 st offense, and seatbelt offense (non-criminal), were filed against the Plaintiff on February 24, 2017. On May 11, 2017, Plaintiff was tried in his absence in a bench trial, found guilty of both charges, and fined $155.00 on the driving without a license charge and $25.00 on the seatbelt charge. See Charleston County Public Index, http://jcmsweb.charlestoncounty.org/PublicIndex/ CaseDetails.aspx?County=10&CourtAgency=10101&Casenum=5102P0679273&CaseType=T; http://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10101&Casenum=5102P0679274&CaseType=T (last visited Oct. 19, 2017).
The Court may take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A 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); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
Discussion
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a 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 frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319. Further, while this Court is also required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the requirement of liberal construction does not mean that the Court can ignore a clear failure in a pleading to allege facts which set forth a claim currently cognizable in a federal court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Initially, Plaintiff's Complaint is subject to dismissal because it is characterized by what some courts have described as "buzzwords" or "legalistic gibberish." See, e.g., Rochester v. McKie, No. 8:11-797, 2011 WL 2671228, at *1 (D.S.C. July 8, 2011) (citing Yocum v. Summers, No. 91-3648, 1991 WL 171389, at *1 (N.D.Ill. Aug. 30, 1991)). Although Plaintiff mentions a treaty and lists the constitution as a basis for jurisdiction, his allegations are so generally incomprehensible and 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]. Thus, 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 each 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.'"].
Moreover, although Plaintiff cites the Treaty of "P[e]ace and Friendship" (which appears to refer to the Moroccan-American Treaty of Peace and Friendship) as a basis for jurisdiction in this case, courts have soundly rejected such claims. See Headen-El v. Keller, No. 1:11CV590, 2011 WL 3568282, at *2 (M.D.N.C. Aug. 15, 2011) ["The fact that a group claiming to be 'Moorish Americans' has written documents that might support" the idea that the court lacks jurisdiction to prosecute and imprison them "does not establish a valid claim."]. Furthermore, the "Moroccan-American Treaty of Peace and Friendship, ratified by President Andrew Jackson on January 28, 1837...[, a]s its title indicates, is [a treaty] of 'Peace and Friendship' between the sovereign states of Morocco and the United States....It does not contain language suggesting that the United States, or any state or territory therein, does not have jurisdiction over a person violating the law within its jurisdiction." Pitt-Bey v. District of Columbia, 942 A.2d 1132, 1136 (D.C. 2008); see, e.g., Wilkerson v. Gozdan, No. 2:14cv731-MHT, 2014 WL 5112085, at *3 (M.D. Ala. Oct. 10, 2014) [explaining that "court[s] lack [] subject matter jurisdiction to enforce '[t]he Zodiac Constitution' or the 'Treaties of Peace and Friendship' "]; Jones-El v. South Carolina, No. 5:13-cv-01851-JMC, 2014 WL 958302, at *8 (D.S.C. Mar. 11, 2014) [rejecting habeas claims under the Zodiac Constitution and Treaty of Peace and Friendship as "completely frivolous, whether raised under § 2254, § 2241, or by way of civil complaint"]; El Ameen Bey v. Stumpf, 825 F.Supp.2d 537, 558 (D.N.J. 2007)[holding Treaty of Peace and Friendship has no impact on jurisdiction of courts].
Plaintiff also lists the United States Constitution, Articles IV (States-Reciprocal Relationship Between States and with United States), V (Amendments), and VI (Debts Validated—Supreme Law of Land—Oath of Office), as a basis for this lawsuit, but has provided no information as to how these provisions are a source of jurisdiction for his claims. Moreover, although Plaintiff references 18 U.S.C. §§ 241 and 242 (ECF No. 1 at 3), these are criminal statues that do not give rise to civil liability or authorize a private right of action. 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]; Wagner v. United States, 377 F.Supp.2d 505, 510-511 (D.S.C. 2005) [§ 241 is a criminal statute that provides no private cause of action]; Rockfeller v. U.S.Ct. of Appeals Office, 248 F.Supp.2d 17, 23 (D.D.C. 2003)[the plaintiff was precluded from bringing case under § 242 because there is no private cause of action under this criminal statute](collecting cases).
Liberally construing his Complaint, Plaintiff may be attempting to assert claims pursuant to 42 U.S.C. § 1983. However, he has failed to allege any comprehensible claim that any of his rights under the Constitution or the laws of the United States were violated. To the extent that Plaintiff is attempting to assert a claim for alleged constitutional violations and/or wrongdoing that may have led to his convictions for driving without a license and a seatbelt offense, he cannot recover damages on a § 1983 civil rights claim without first having his conviction reversed, expunged, or called into question by a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff has not asserted that these convictions have been reversed, expunged, or called into question by a writ of habeas corpus. Further, to the extent Plaintiff was attempting to challenge pending criminal charges and, through the filing of this lawsuit, have this Court intervene in such proceedings, absent extraordinary circumstances federal courts are not authorized to interfere with a State's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989). In Cinema Blue of Charlotte, Inc., the United States Court of Appeals for the Fourth Circuit ruled that federal district courts should abstain from constitutional challenges to state judicial proceedings, no matter how meritorious, if the federal claims have been or could be presented in an ongoing state judicial proceeding. Id. at 52. Moreover, the Anti-Injunction Act, 28 U.S.C. § 2283, expressly prohibits this court from enjoining such proceedings. See Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1336 (8th Cir. 1975) (en banc) ["Congress and the federal judiciary have consistently recognized that federal courts should permit state courts to try state cases, and that, where constitutional issues arise, state court judges are fully competent to handle them subject to Supreme Court review."]; cf. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983)[federal courts cannot review state court proceeding in appellate sense]; Gurley v. Superior Court of Mecklenburg Cnty., 411 F.2d 586, 587-88 & nn.2-4 (4th Cir. 1969)[federal courts may not issue writs of mandamus against state courts]. Of course, Plaintiff is not foreclosed from raising the issues alleged in his Complaint and having them ruled on in any ongoing state criminal prosecutions by a state court judge, but this Court may not intervene in any such pending criminal proceedings.
Section 1983 "'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)). A civil action under § 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States," Rehberg v. Paulk, 566 U.S. 356, 361 (2012); and to state a claim under § 1983, a plaintiff must allege two essential elements: (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).
Plaintiff also appears to be asserting that he has a "right to travel", which he interprets as an unfettered right to drive a car or other motor vehicle. However, numerous courts have stated that there is no fundamental right to drive. See Miller v. Reed, 176 F.3d 1202, 1205-1206 (9th Cir. 1999) [indicating that there is no fundamental right to drive]; Matthew v. Honish, 233 F. App'x. 563, 564 (7th Cir. May 10, 2007) [finding no fundamental right to drive a motor vehicle]. Further, to the extent that Plaintiff is arguing that the State of South Carolina lacks jurisdiction to prosecute him because he is a Moorish American, such arguments have also previously been rejected. See Supreme-El v. Director, Dep't of Corr., 3:14CV52, 2015 WL 1138246, at *17 (E.D. Va. Mar. 3, 2015)(quoting El v. Mayor of City of New York, No. 13-CV-4079 (SLT)(CLP), 2014 WL 4954476, at *5 (E.D.N.Y. Sept. 30, 2014) (citation omitted)); Bond v. N.C. Dep't of Corr., No. 3:14-CV-379-FDW, 2014 WL 5509057, at *1 (W.D.N.C. Oct. 31, 2014)["courts have repeatedly rejected arguments...by individuals who claim that they are not subject to the laws of the...individual States by virtue of their 'Moorish American' citizenship"].
Additionally, three of Plaintiff's named Defendants are not even proper party Defendants in a § 1983 action. The Defendant North Charleston Police Department is not a "person" subject to suit under § 1983, as a police department is a group of officers in a building and, as such, is not a party subject to suit under § 1983. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Petaway v. City of New Haven Police Dep't, 541 F. Supp.2d 504, 510 (D.Conn. 2008) ["[A] municipal police department is not subject to suit under section 1983 because it is not an independent legal entity."]. Defendant North Charleston Municipal Court is also entitled to summary dismissal as it appears to be a building or entity which would also generally not be a legal entity subject to suit. See Nelson v. Lexington Cnty. Pet. Ctr., C/A No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011)[finding that a building or detention center is not amenable to suit under § 1983, and that Food Service Supervisors was a group of people not subject to suit]; see also Wright v. Court of Common Pleas, Civ. No. 12-655-GMS, 2012 WL 3916073, at *2 (D. Del. Sept. 6, 2012) [citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) in finding that a Delaware Court of Common Pleas was not a state actor under § 1983]. As for Magistrate Duff, he is entitled to absolute judicial immunity from suit for all actions taken in his judicial capacity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987)[a suit by South Carolina inmate against two Virginia magistrates]; Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985)["It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions."]; see also Siegert v. Gilley, 500 U.S. 226 (1991) [immunity presents a threshold question which should be resolved before discovery is even allowed]; accord Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000)[discussing judicial immunity of United States District Judges and United States Circuit Judges]. Therefore, Defendant Duff is entitled to dismissal as a party Defendant from this lawsuit.
Plaintiff's other basis for jurisdiction, diversity jurisdiction for state law claims under 28 U.S.C. § 1332, is also without merit. A district court may have jurisdiction over a state law civil action only "where the matter in controversy exceeds the sum or value of $75,000...and is between-(1) citizens of different States...". 28 U.S.C. § 1332. Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) [Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side]. Although Plaintiff failed to provide any addresses for the Defendants, they all appear to be citizens of South Carolina. Additionally, while Plaintiff lists his City and State of residence as "Huger Tunis Northwest Amexem/North America" (ECF No. 1 at 2), he also states that he is a citizen of the "S.C. Republic" (ECF No. 1, 1t 4) and it is clear that he is a South Carolina citizen. As such, any claim to Moorish-American status does not support diversity jurisdiction attaching in this case. See Smith ex rel. Bey v. Kelly, 2012 WL 1898944, at *2-3 (E.D.N.Y. May 24, 2012); see also Allah El v. Avesta Homes, LLC, 520 F. App'x 806 (11th Cir. 2013)[Plaintiffs' status as Moorish Americans does not render them diverse for purposes for jurisdiction absent allegations that plaintiffs were citizens of a different nation or that they resided in a state other than Florida].
A party's citizenship is determined by his domicile, defined as the place where he has "his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998).
Finally, it must also be noted that Plaintiff has failed to bring his case into proper form. By Order dated July 25, 2017, Plaintiff was given an opportunity to provide the necessary information and paperwork, to include a completed summons form, completed and signed Forms USM-285, completed and signed pro se party's answers to Rule 26.01 interrogatories, and a completed and signed "Certification and Closing" section of his Complaint form. ECF No. 8. See also Brockington v. South Carolina Dep't of Soc. Servs., No. 17-1028, 2017 WL 1531633 (4th Cir. 2017)[Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]. Despite being granted an extension of time (ECF No. 12), Plaintiff failed to do so within the time specified, following which the undersigned issued a Report and Recommendation recommending that this action be dismissed without prejudice pursuant to Rule 41, Fed. R. Civ. P. (ECF No. 15). When Plaintiff thereafter submitted objections and requested a continuance because he was incarcerated, the Report and Recommendation was vacated and Plaintiff was granted additional time to bring his action into proper form. ECF No. 19. Plaintiff then submitted unsigned pro se answers to Rule 26.01 interrogatories, an unsigned "Certification and Closing" section of his Complaint form, and incomplete summons forms (which fail to include addresses) for Defendants Duff and Evans (with no summons forms for the other Defendants), and no Forms USM-285. See ECF Nos. 1-3, 22, 23. Thus, in the alternative, this action may be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F. 2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion].
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process.
Plaintiff's attention is directed to the important notice on the next page. October 26, 2017
Charleston, South Carolina
/s/_________
Bristow Marchant
United States Magistrate Judge
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).