Opinion
C. A. 8:23-cv-04782-HMH-KFM
03-25-2024
Malcolm Bey, Plaintiff, v. Isaac K. Fekete, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
The plaintiff, a non-prisoner proceeding pro se and in forma pauperis, brings this civil action seeking damages from the defendant. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on September 25, 2023 (doc. 1). On September 28, 2023, a report and recommendation was issued recommending that the plaintiff's complaint be dismissed (doc. 10). On October 6, 2023, the plaintiff's amended complaint was entered on the docket (doc. 13) and on October 10, 2023, the plaintiff's second amended complaint was entered on the docket (doc. 14). In light of the amended pleadings submitted, on October 11, 2023, the Honorable Henry M. Herlong, Jr., Senior United States District Judge, entered an order recommitting the matter for additional pretrial review (doc. 16). The plaintiff then appealed Judge Herlong's order (doc. 19). The case was transferred to the undersigned, the Fourth Circuit dismissed the plaintiff's appeal on March 1, 2024 (docs. 28; 30), and the mandate was issued on March 25, 2024 (doc. 32). As such, the plaintiff's second amended complaint is now ripe for review.
An amended pleading (such as the plaintiff's second amended complaint) replaces the original or amended complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (internal citations omitted). However, out of an abundance of caution for the pro se plaintiff, the undersigned reviewed the plaintiff's amended complaint as well as the second amended complaint. The second amended complaint repeats all the allegations of the amended complaint and appears to be a copy of the amended complaint submitted in a different order (compare doc. 13 with doc. 14). As such, the undersigned will only address the plaintiff's second amended complaint in this report and recommendation.
ALLEGATIONS
Of note, the plaintiff's claims in this action appear to involve two traffic citations and one criminal citation that were adjudicated in the Anderson County Summary Court: giving false information to police, driving without a license, and passing unlawfully.Anderson County Public Index, https://publicindex.sccourts.org/Anderson/PublicIndex/ PlSearch.aspx (enter 20232351459880, 20232351459881,20232351459882) (last visited March 25, 2024).
See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
The plaintiff, who identifies himself as a Moorish-American, asserts that his rights were violated on June 20, 2023, after a motor vehicle accident (doc. 14 at 1). The plaintiff contends that he was a victim of reckless driving by another driver (id.). The defendant, Ofc. Fekete, then arrived and asked for the plaintiff's drivers license (without asking if he was okay) (id. at 2). The plaintiff responded that he was not required to provide a driver's license as a Moorish-American and provided his Moorish-American card instead (id.). Ofc. Fekete indicated that the plaintiff's Moorish-American card was insufficient and threatened to take the plaintiff to jail if he did not provide his drivers license (id. at 2-3). The plaintiff then requested to speak to a supervisor and although other officers in a Sheriff's car arrived on scene, none came to speak with the plaintiff (id. at 3). The plaintiff contends that Ofc. Fekete again threatened to take the plaintiff to jail unless he provided a driver's license (id.). The plaintiff contends that Ofc. Fekete's actions were abusive and coercive (id.). The plaintiff then refused to provide his driver's license and alleges that Ofc. Fekete handcuffed the plaintiff with excessive force by pushing and pulling him to be handcuffed (id.). He contends that these actions have broken his trust in law enforcement because he has been denied the right to travel as a Moorish-American citizen (id. at 3-4). The plaintiff contends that he was then charged by Ofc. Fekete with giving false information to police, driving without a license, and passing unlawfully - even though Ofc. Fekete did not tell the plaintiff what he was going to be charged with (id. at 4). The plaintiff has subsequently been forced to “defraud” his name by the “administrative agency” of the South Carolina Summary Court (id.). For relief, the plaintiff seeks money damages (id. at 5).
STANDARD OF REVIEW
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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, 391 (4th Cir. 1990).
This complaint was filed pursuant to § 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)). 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). 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).
DISCUSSION
As noted above, the plaintiff filed the instant action seeking damages from the defendant. For the reasons that follow, this action is subject to summary dismissal.
The plaintiff's complaint is barred by Heck v. Humphrey
To the extent the plaintiff seeks money damages from the defendant because he was arrested for giving false information to police, driving without a license, and passing unlawfully, his claims are barred by Heck. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that in order to recover damages for imprisonment in violation of the Constitution, the imprisonment must first be successfully challenged. Id. The Court stated:
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87 (footnote omitted); see also Edwards v. Balisock, 520 U.S. 641 (1997) (the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies which necessarily imply the invalidity of the judgment). This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). The plaintiff's second amended complaint includes no indication that his charge was adjudicated in his favor (see doc. 14). Moreover, as noted, judicially-noticed, publicly-available online records for the Anderson County Summary Court indicate that the plaintiff was found guilty during a bench trial of all charges: giving false information to police, driving without a license, and passing unlawfully. See Anderson County Public Index (enter 20232351459880, 20232351459881, 20232351459882) (last visited March 25, 2024). These convictions do not indicate a favorable termination; thus, the plaintiff's damages claims are barred by Heck.
Failure to State a Claim
In addition to Heck, this action is also subject to dismissal as frivolous and for failure to state a claim.
Excessive Force Claim
In passing in his second amended complaint, the plaintiff alleges excessive force when he was “pushed” and “pulled” against his car to be handcuffed by the defendant (doc. 14 at 3). The Fourteenth Amendment “protects a pretrial detainee from the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (internal quotation marks and citation omitted). To state an excessive force claim, a pretrial detainee must plausibly allege that the force “purposely or knowingly used against him was objectively unreasonable.” Id. The standard is “solely an objective one.” Id. In determining whether the force was objectively unreasonable, a court considers the evidence “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). Here, as noted above, the plaintiff makes only a passing allegation of excessive force indicating that he was “pushed” and “pulled” against the car and handcuffed by the defendant (doc. 14 at 3). However, the plaintiff's vague and conclusory allegations fail to allege that Ofc. Fekete used objectively unreasonable force. Indeed, the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Moreover, the plaintiff's second amended complaint contains no allegations regarding how the defendant exceeded the bounds of reasonable force in “pushing” or “pulling” him to handcuff him. As such, even liberally construed, the plaintiff's allegations regarding excessive force “stop[] short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted) (noting that it is not enough to plead facts that are “merely consistent” with a defendant's liability). In light of the foregoing, the plaintiff's excessive force claim is subject to summary dismissal.
Frivolousness
The plaintiff's assertion that the defendant violated his rights as a MoorishAmerican citizen by asking for his drivers license, even apart from Heck, is also subject to dismissal as frivolous. See Feurtado v. McNair, C/A No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). Indeed, the claims brought by the plaintiff in this action, that the defendant violated his rights by requiring him to hand over a drivers license, appear to be based on the notion that he has special status in the United States as a “Moorish-American.” Individuals who are Moorish-American - such as the plaintiff herein - often append or substitute the words El, Ali, or Bey “to their last names to signify their claimed Moorish ancestry.” El-Bey v. City of Greensboro, C/A No. 1:10-cv-00572, 2011 WL 4499168, at *1 n.1 (M.D. N.C. Sept. 27, 2011), Report and Recommendation adopted as modified by 2012 WL 13064405 (M.D. N.C. Mar. 21, 2012), aff'd, 539 Fed.Appx. 312 (4th Cir. 2013). However, such allegations of a special status on this basis have been thoroughly discredited and noted as patently frivolous. See Hemingway-EL v. City of High Point, C/A No. 1:09-cv-00711, 2012 WL 1313312, at *2 (M.D. N.C. Apr. 17, 2012) (collecting cases rejecting claims based upon special status with a “Moorish group”), Report and Recommendation adopted by 2012 WL 1867113 (M.D. N.C. May 22, 2012). Indeed, as recognized by the Honorable Thomas D. Schroeder, United States District Judge for the Middle District of North Carolina, the individuals identifying as Moorish Americans are “the most recent incarnation of a notorious organization of scofflaws and ne'er-do-wells who attempt to benefit from the protections of federal and state law while simultaneously proclaiming their independence from and total lack of responsibility under those same laws.” U.S. v. $7,000.00 in U.S. Currency, 583 F.Supp.2d 725, 732 (M.D. N.C. 2008) (collecting cases finding as frivolous, baseless, fantastical, and delusional, the claims of individuals identifying as part of Moorish groups). As such, the undersigned also recommends this action be dismissed as frivolous.
Supplemental Jurisdiction
To the extent the plaintiff's second amended complaint could be construed as seeking damages based on state law causes of action the court should abstain from exercising jurisdiction over such claims. Such claims can be considered by this court through the exercise of “supplemental jurisdiction,” which allows federal courts to hear and decide state law claims along with federal claims. Wis. Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998); 28 U.S.C. § 1367. However, federal courts are permitted to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” Here, as noted, the plaintiff's complaint fails to state a federal claim for relief and is frivolous, as outlined in more detail above. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending the second amended complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice (other than any claims barred by Heck), without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (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”). It is further recommended that the United States District Judge assigned to this case warn the plaintiff regarding the entry of sanctions in the future should the plaintiff continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).