Opinion
C. A. 6:21-cv-00739-DCC-KFM
05-03-2021
Larry Blakney, Plaintiff, v. SLED, South Carolina Law Enforcement Division of Hartsville SC, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on a motion to proceed in forma pauperis filed by the plaintiff (doc. 8) and a complaint entered on the docket on March 11, 2021 (doc. 1). The plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983, seeking damages from the defendants. 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.
ALLEGATIONS
The plaintiff, a pretrial detainee currently housed in the Butner Federal Medical Center (“Butner”), alleges that his 1st, 4th, and 14th Amendment rights have been violated by the defendants (hereinafter, collectively “SLED”) (docs. 1; 1-2). He contends that SLED is violating his First Amendment rights by preventing him from being a minister of the gospel (doc. 1 at 1). He also contends that SLED is harassing and extorting the plaintiff by the use of recording devices without his permission at Butner (docs. 1 at 2; 1-2 at 4-5). For injuries, the plaintiff asserts mental distress (doc. 1-2 at 5). For relief, the plaintiff seeks to have criminal charges brought against the defendants for eavesdropping on him (doc. 1 at 2). He also seeks money damages (doc. 1-2 at 5).
APPLICABLE LAW & ANALYSIS
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). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As noted above, the plaintiff has filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 (doc. 8). However, the plaintiff is subject to the “three-strikes” rule of the Prisoner Litigation Reform Act (“PLRA”), which provides:
In no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g)(emphasis added). Regardless of dismissal being with or without prejudice, a “strike” is based on the dismissal basis alone. Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1725 (2020). “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Id. at 1727.
As an initial matter, the plaintiff has had several actions dismissed for failure to state a claim. See Blakney v. Ray, C/A No. 6:19-cv-03398-DCC-KFM, 2020 WL 1876245 (Apr. 15, 2020); Blakney v. Pate, C/A No. 4:19-cv-02310-DCC-KFM, 2019 WL 4958163 (D.S.C. Oct. 8, 2019); Blakney v. Ray, C/A No. 6:19-cv-01936-DCC-KFM, 2019 WL 5103891 (D.S.C. Oct. 11, 2019); Blakney v. Williamson, et al., C/A No. 4:18-cv-03067-DCC-KFM, 2018 WL 6571209 (D.S.C. Dec. 13, 2018); Blakney v. Ray, C/A No. 6:18-cv-01178-DCC-KFM, 2018 WL 3729659 (D.S.C. Aug. 6, 2018).
The plaintiff has also had five cases dismissed specifically as frivolous - one in the United States District Court for the Southern District of Florida and four in the District of South Carolina. See Blakney v. Hartsville S.C. Police Officials, et al., C/A No. 6:20-cv-03770-DCC, 2021 WL 1177107 (D.S.C. Mar. 29, 2021); Blakney v. Brewton, et al., C/A No. 6:20-cv-03219-DCC, 2021 WL 1177109 (D.S.C. Mar. 29, 2021); Blakney v. Darlington Cnty. Det. Ctr., et al., C/A No. 6:20-cv-02964-DCC, at doc. 19 (D.S.C. Jan. 29, 2021); Blakney v. Brewton, et al., C/A No. 6:20-cv-02915-DCC, 2021 WL 307489 (D.S.C. Jan. 29, 2021); Blakney v. Brewton, et al., C/A No. 1:20-cv-22034-RNS, 2020 WL 5015288 (S.D. Fla. Aug. 24, 2020). The plaintiff's first dismissal for frivolousness, entered by the United States District Court for the Southern District of Florida, provided the plaintiff another attempt to file an amended pleading that would not be frivolous, but he did not do so. Blakney v. Brewton, et al., C/A No. 1:20-cv-22034-RNS, 2020 WL 5015288 (S.D. Fla. Aug. 24, 2020); Blakney v. Brewton, et al., C/A No. 1:20-cv-22034-RNS, at doc. 17. In this court, the dismissal orders in four of the plaintiff's cases adopted the Reports and Recommendations issued by the undersigned recommending that the actions be dismissed as frivolous - with two also specifically designated as strikes pursuant to 28 U.S.C. § 1915(g). See Blakney v. Hartsville S.C. Police Officials, et al., C/A No. 6:20-cv-03770-DCC, 2021 WL 1177107 (D.S.C. Mar. 29, 2021) (dismissed as frivolous); Blakney v. Brewton, etal., C/A No. 6:20-cv-03219-DCC, 2021 WL 1177109 (D.S.C. Mar. 29, 2021) (dismissed as frivolous); Blakney v. Darlington Cnty. Det. Ctr., etal., C/A No. 6:20-cv-02964-DCC, at doc. 19 (D.S.C. Jan. 29, 2021) (designated as a strike); Blakney v. Brewton, et al., C/A No. 6:20-cv-02915-DCC, 2021 WL 307489 (D.S.C. Jan. 29, 2021) (designated as a strike).
As outlined above, the plaintiff has received more than three dismissals which count as strikes, including five dismissals for frivolousness. The three-strikes rule was enacted to bar prisoners, such as the plaintiff, from pursuing certain types of federal civil litigation without prepayment of the filing fee. As such, because the plaintiff has five prior actions that were dismissed because they were “frivolous, malicious, or [for failure] to state a claim upon which relief may be granted, ” he is barred from proceeding in this action in forma pauperis unless he has plausibly alleged that he is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The imminent danger exception to § 1915(g)'s “three strikes” rule is to be narrowly construed and a plaintiff must allege imminent danger at the time the complaint was filed, not that the plaintiff has faced imminent danger in the past. Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) (unpublished per curiam opinion). Thus, although the plaintiff's complaint contains a vague and conclusory reference to being threatened by SLED, his allegations do not meet the imminent danger requirements of § 1915(g). Indeed, as discussed below, the complaint is frivolous; as such, the plaintiff cannot meet the imminent danger requirements of § 1915(g). Accordingly, the undersigned recommends that the plaintiff's motion to proceed in forma pauperis be denied.
Frivolousness
The instant action is subject to summary dismissal because it is frivolous. Here, the plaintiff's strange allegations do not raise a cognizable federal claim-nor does he appear to name a party amenable to suit. It is well-settled that the court has the authority to dismiss claims that are obviously “fantastic” or “delusional.” Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994); Raiford v. FBI, C/A No. 1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), Report and Recommendation adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the irrational or the wholly incredible”). In reviewing a complaint for frivolousness or malice, the court looks to see whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Harley v. United States, 349 F.Supp.2d 980, 981 (M.D. N.C. 2004) (citing Neitzke v. Williams, 490 U.S. 319 (1989)). The Court must accept all well-pled allegations and review the Complaint in a light most favorable to petitioner. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Indeed, SLED is an agency of the State of South Carolina and has Eleventh Amendment immunity from a suit for damages brought in this court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Alabama v. Pugh, 438 U.S. 781 (1978); see also S.C. Code § 23-3-10 (establishing SLED as an agency of the state of South Carolina). Additionally, the plaintiff seeks to bring criminal charges against SLED; however, private citizens lack a judicially cognizable interest in the prosecution or non-prosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
Here, the plaintiff's complaint is comprised of factual allegations that are not credible, and which fail to state a claim for relief. The plaintiff's unsubstantiated allegations describe a conspiracy to eavesdrop on and defame the plaintiff at Butner, although the plaintiff sues a South Carolina state agency (and not a defendant associated with Butner) (see docs. 1; 1-2). Such claims are clearly delusional and frivolous, and fail to show any arguable basis in fact or law. See Neal v. Duke Energy, No. 6:11-cv-1420-HFF-KFM, 2011 WL 5083181, at *4 (D.S.C. June 30, 2011), Report and Recommendation adopted by 2011 WL 5082193 (D.S.C. Oct. 26, 2011) (dismissing action upon finding plaintiff's factual allegations were frivolous, fanciful, and delusional where plaintiff claimed defendants clandestinely placed a GPS device in her car while it was in the shop for repairs and that she was being stalked by the defendants, noting the allegations were “made without any viable factual supporting allegations and appears to be the product of paranoid fantasy”); Feurtado v. McNair, 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). As such, the undersigned recommends that this action be dismissed as frivolous.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the plaintiff's motion to proceed in forma pauperis (doc. 8) be denied. IT IS FURTHER RECOMMENDED that the instant matter be dismissed as frivolous. Additionally, because it is frivolous, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend his complaint (as the frivolity of the action cannot be cured via amending the complaint). See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Socy, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); 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)).
Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process as frivolous.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following 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 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
300 East Washington Street, Room 239
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).