Opinion
C/A 4:22-4386-RBH-TER
01-09-2023
Henry M. Burgess, Jr., Plaintiff, v. Federal Bureau Investigation, Pastor Samuel Burgess, Williamsburg County Sheriff, Myrtle Beach Police Department, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge.
This is a civil action filed by a pro se party proceeding in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. 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 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff's action is subject to dismissal for failure to state a claim upon which relief can be granted.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 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) (internal quotation and citation omitted). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Under § 1983, a plaintiff must establish 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 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff alleges a single basis for this court's jurisdiction, federal question jurisdiction and alleges it is based in the First Amendment as defamation. (ECF No. 1 at 4). Plaintiff alleges generally that “for over five years, I've been followed by state troopers unsafely.” (ECF No. 1 at 6). Plaintiff's request for relief is five million dollars for impairment to reputation and seeks “exterior gratification, exterior deity, exterior help.” (ECF No. 1 at 6). Plaintiff vaguely states: “The one that actually started this lie, is a zealot.” (ECF No. 1 at 7). Plaintiff then alleges he was followed from eating at a community kitchen in Myrtle Beach. “Information was exposed to me also. It got so bad following and running up on me on foot at my wife's job.” (ECF No. 1 at 7). Plaintiff essentially asserts that he is being watched everywhere he goes. (ECF No. 1 at 7-8). Plaintiff alleges this is done to ruin his reputation.
Public records for the counties mentioned by Plaintiff do not show any traffic tickets or arrests as to Plaintiff in recent years. See https://publicindex.sccourts.org/horry/publicindex/ and https://publicindex.sccourts.org/williamsburg/publicindex/(with search parameters limited by Plaintiff's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff fails to state a plausible federal constitutional claim because the First Amendment does not provide a private cause of action for defamation. Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation.”); Blackstock v. Miller, No. 4:17-CV-01926-RBH-KDW, 2017 WL 3530525, at *1-2 (D.S.C. July 28, 2017), report and recommendation adopted, 2017 WL 3500219 (D.S.C. Aug. 16, 2017)(collecting cases). It is well settled that 42 U.S.C. § 1983 may not be used to assert defamation claims. See Paul v. Davis, 424 U.S. 693, 711-12 (1976) (interest in reputation alone does not implicate a “liberty” or “property” interest sufficient to invoke due process protection under § 1983). Plaintiff's action is subject to summary dismissal.
Defamation is a state-law based claim that may be considered by this court under its diversity or supplemental jurisdiction. However, there is no diversity jurisdiction here to support the pursuit of a state law claim where there is no federal question jurisdiction. Here, both Plaintiff and a Defendant are South Carolina residents; there is no basis for diversity jurisdiction. See, e.g., Newman-Greene, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (complete diversity required); C.L. Ritter Lumber Co. v. Consolidation Coal Co., 283 F.3d 226, 229 (4th Cir. 2002) (same); Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999) (same). Also, in absence of any plausible federal-question claim, there is no basis for the exercise of supplemental jurisdiction. See 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Plaintiff's allegations also border on the frivolous and nonsensical. A complaint is deemed frivolous when it is “clearly baseless” and includes allegations that are “fanciful,” “fantastic,” or “delusional.” Denton, 504 U.S. 25, 32-33(internal quotation marks omitted) (citing Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989)).
Plaintiff has failed to state a claim upon which relief could be granted. Thus, Plaintiff's action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice under § 1915 and without issuance and service of process.
It is recommended this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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
Post Office Box 2317
Florence, South Carolina 29503
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).