Opinion
Case No. 2:19-cv-3045-RMG-MGB
11-22-2019
Bulus Kurnil Brayint El, Plaintiff, v. Officer Fornandes and Sheriff Al Cannon, Defendants.
REPORT AND RECOMMENDATION
This is a civil action under 42 U.S.C. § 1983. Plaintiff is a pretrial detainee representing himself and proceeding in forma pauperis. Under Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review the complaint and submit a recommendation to the United States District Judge. For the following reasons, the undersigned recommends that this action be dismissed, with prejudice and without issuance or service of process.
BACKGROUND
Plaintiff is in jail at the Al Cannon Detention Center in North Charleston, South Carolina. (Dkt. No. 1 at 13.) The defendants are Officer Fornandes, an officer in the City of North Charleston's Police Department, and Charleston County Sheriff Al Cannon. (Id. at 2-3.)
This past August, Plaintiff was pulled over and arrested for failing to pay child support, driving without a license, driving without insurance, and driving an unregistered vehicle. (Dkt. No. 1 at 5.) Plaintiff, who proclaims to be a Moorish national, alleges Defendants have kidnapped him and have thus violated his rights. (Id.; Dkt. No. 1-1 at 6.) Plaintiff demands to be awarded damages from each defendant, for "rules to be set so no one has to go threw [sic] this anymore," to be released from jail, and to have unspecified property returned to him. (Dkt. No. 1 at 7.)
LEGAL STANDARD
Through a separate order, the undersigned has granted Plaintiff leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e). The granting of in forma pauperis status in a case triggers a district court's duty to "sift out claims that Congress found not to warrant extended judicial treatment." Nagy v. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004). The Court must dismiss any cases that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915(e)(2)(B).
As to failure to state a claim, a complaint filed in federal court "'must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court need not, however, accept as true a complaint's legal conclusions. Id. When "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
As to frivolity, because "frivolous" is an inherently flexible term, district may "consider any factors that experience teaches bear on the question of frivolity." Nagy, 376 F.3d at 257. However, perhaps the most common type of frivolous claim is one "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 327 (1989).
The undersigned has screened the complaint while keeping in mind her duty to construe pro se filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
DISCUSSION
Plaintiff is suing under § 1983, which is "not an independent source of substantive rights, but simply a vehicle for vindicating preexisting constitutional and statutory rights." Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017). To state a § 1983 claim, a plaintiff must allege facts demonstrating that (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
The complaint consists mostly of attachments, including a copy of Plaintiff's "Allodial American National" identification card, a "notice of Public Records Correction," a "Judicial Notice and Proclamation," and several other documents on which Plaintiff has written "Affidavit of Fact" and made notations. The undersigned has carefully studied the documents, as well as the complaint itself, in order to discern what Plaintiff is attempting to claim. Having done so, she concludes the complaint is subject to summary dismissal for being frivolous and for failing to state a claim.
The Court may consider the attachments as part of complaint for the purposes of § 1915(e) screening. Brown v. United States, No. 5:19-cv-154-FL, 2019 WL 3753193, at *3 n.2 (E.D.N.C. May 10, 2019) (citing Mobley v. Foster, No. 1:17-cv-117, 2017 WL 1409612, at *2 n.2 (M.D.N.C. Apr. 20, 2017)), report and recommendation adopted, 2019 WL 3783271 (E.D.N.C. Aug. 12, 2019); see also Anderson v. Miller, No. 0:08-cv-743, 2008 WL 5100845, at *1 n.2, *4 (D.S.C. Dec. 2, 2008).
A. Frivolity
In the "Judicial Notice and Proclamation" document attached to the complaint, Plaintiff asserts that, as a member of the Moorish Nation, he is immune from taxation and criminal prosecution, and he is outside the jurisdiction of American courts. (Dkt. No. 1-1 at 8, 9.) He supports that position by arguing American law applies only to white people and citing a host of texts, including the Dred Scott decision and the 1787 Treaty of Peace and Friendship Between the United States and Morocco. (Id. at 8-9.) Those positions so plainly lack any legal or factual support that this Court, and many others, have declared them frivolous in initial screenings of pro se complaints. See, e.g., Cooper v. Van Slambrook, No. 2:19-cv-649-DCN-BM, 2019 WL 3777153, at *3 (D.S.C. June 4, 2019) ("[T]he 'Moorish Nation' is not a recognized sovereign state, and persons claiming to be a Moor or Moorish-American are not immune from the laws and rules imposed by the United States or the individual states."), report and recommendation adopted, 2019 WL 3778739 (D.S.C. June 25, 2019); id. (citing other cases reaching the same conclusion); United States v. Smalls, No. 2:16-cr-950-DCN, 2018 WL 6065383, at *3 (D.S.C. Nov. 20, 2018) (joining "the majority of courts" by finding no validity to claim that federal courts lack jurisdiction over Moorish Nationals, and citing some of those other courts' cases); Bey v. Stumpf, 825 F. Supp. 2d 537, 558 (D.N.J. 2011) ("[A] litigant's reliance on [the Treaty of Peace and Friendship] for the purposes of a civil suit raising claims based on events that occurred within what is the United States' geographic territory is facially frivolous . . . .").
The identification card attached to the complaint has a photo of Plaintiff. He is African American. (Dkt. No. 1-1 at 2.)
Although those assertions alone warrant dismissing the complaint as frivolous, Plaintiff's pleading contains another frivolous assertion. Plaintiff alleges that he has a fundamental right to drive as he pleases: speeding, running stop signs, and driving an unregistered vehicle pose no threat to public safety, and so arresting someone for such conduct is illegal because it infringes upon the right to travel. (Dkt. No. 1 at 9, 10.) In that same vein, he alleges police cannot use outstanding bench warrants to arrest drivers because that violates the right to travel. (Id.) Those assertions are frivolous; courts have squarely rejected the notion that there is a fundamental right to drive. See, e.g., Matthew v. Honish, 233 F. App'x 563, 564 (7th Cir. 2007) (finding "meritless" the notion that there is such a right); Miller v. Reed, 176 F.3d 1202, 1205-06 (9th Cir. 1999) (indicating there is no such right); Hampton-Bey v. Concord Police Dep't, No. 1:19-cv-9, 2019 WL 3751028, at *3 (M.D.N.C. May 2, 2019) (finding plaintiff's claims, which were based on purported right to travel without obeying state vehicle laws, frivolous); Bey v. Duff, No. 2:17-cv-1004-RMG-BM, 2017 WL 5485469, at *4 (D.S.C. Oct. 26, 2017) (citing Matthew and Miller), report and recommendation adopted, 2017 WL 5495169 (D.S.C. Nov. 14, 2017); McGhee v. McCall, No. 1:10cv-333, 2010 WL 2163818, at *2 (W.D. Mich. Apr. 19, 2010) (stating "federal courts uniformly reject suits by plaintiffs who seek vindication of their nonexistent "right" to operate motor vehicles without complying with state licensing laws" and citing, as examples, five other cases), report and recommendation adopted, 2010 WL 2163826 (W.D. Mich. May 27, 2010).
For the above reasons, the complaint is subject to summary dismissal for being frivolous.
B. Failure to State a Claim
Even if the complaint was not frivolous, summary dismissal would still be appropriate because it contains no facially plausible claims for relief.
First, Plaintiff alleges it was illegal for him to be arrested for a child-support violation; because child support is a civil matter, a person's failure to pay child support can never amount to probable cause to arrest him. (Dkt. No. 1-1 at 4.) Plaintiff's view about failing to pay child support is mistaken; as this Court said nearly a decade ago, "South Carolina statutory law has clearly established that failure to pay child support is punishable by imposition of a fine, or imprisonment, or both." Allen v. Dep't of Soc. Servs., No. 2:10-cv-2162-DCN-RSC, 2010 WL 3655566, at *2 (D.S.C. Aug. 31, 2010), report and recommendation adopted, 2010 WL 3655564 (D.S.C. Sept. 20, 2010); see also id. at *2 n.6 (quoting South Carolina Code section 63-3-620, which makes failure to obey a child-support order punishable as contempt of the family court). Child support itself is a civil matter, but failing to pay it can be criminal. Thus, while the undersigned takes no position on whether there was probable cause to arrest Plaintiff for his specific child-support issue (or for any other reason), Plaintiff's across-the-board assertion has no support in this Court's jurisprudence or in South Carolina law.
Second, Plaintiff quotes 18 U.S.C. § 241 and § 242 in his complaint. (Dkt. No. 1-1 at 10-11.) Plaintiff does not explain the quotations; the undersigned liberally construes the complaint as alleging claims under the statutes. But they are criminal-law statutes; neither creates civil liability or provides a private right of action. United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003) (§ 241 and § 242); Bey v. Colon, No. 2:19-cv-941-BHH-BM, 2019 WL 3557920, at *3 (D.S.C. July 10, 2019) (§ 242), report and recommendation adopted, 2019 WL 3547086 (D.S.C. Aug. 5, 2019); Wagner v. United States, 377 F. Supp. 2d 505, 510-11 (D.S.C. 2005) (§ 241). Thus, Plaintiff cannot state a claim under those statutes.
Third, and similarly, Plaintiff discusses 18 U.S.C. § 1028 in his complaint. (Dkt. No. 1-1 at 1.) It is unclear whether Plaintiff is intending to assert a claim under § 1028, but courts have uniformly held it creates no civil cause of action. See, e.g., Blackstock v. Walgreens, No. 4:17-cv-2097-RBH-KDW, 2017 WL 4174767, at *2 (D.S.C. Sept. 1, 2017) (collecting cases), report and recommendation adopted, 2017 WL 4156445 (D.S.C. Sept. 19, 2017). Thus, to the extent Plaintiff may be seeking civil relief under § 1028, such a claim lacks any merit.
Fourth, Plaintiff cites the Ninth Amendment in order to assert his natural rights remain intact. (Dkt. No. 1-1 at 4, 9.) To the extent he may be relying on it to sue Defendants, he may not do so; "the Ninth Amendment 'has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation.'" Cooper, 2019 WL 3777153, at *2 (quoting Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991)).
Fifth, Plaintiff is suing Defendants in both their individual and official capacities. (Dkt. No. 1 at 2-3.) Plaintiff's official-capacity claims create additional hurdles. Suing someone in his official capacity is "'only another way of pleading an action against an entity of which [he] is an agent.'" Wilson v. Slager, No. 2:15-cv-2170-DCN, 2016 WL 1253179, at *5 (D.S.C. Mar. 31, 2016) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). Thus, an official-capacity claim against Fornandes is essentially a claim against the City of North Charleston. But a municipality cannot be vicariously liable under § 1983; rather, it can be liable only for deprivations of federal rights caused by its official policies or customs. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). Plaintiff alleges no facts suggesting Fornandes was following City custom or policy when he allegedly violated Plaintiff's rights. Thus, the official-capacity claim against Fornandes is subject to summary dismissal.
Meanwhile, Cannon cannot be sued for damages in his official capacity. As a state official, he is immune under the Eleventh Amendment. See Edwards v. Lexington Cty. Sheriff's Dept., 688 S.E.2d 125, 127 n.1 (S.C. 2010) (holding South Carolina law makes sheriffs state officials); Bey, 2018 WL 1135382, at *6 (finding official-capacity damages claim against sheriff was subject to summary dismissal due to Eleventh Amendment immunity). Thus, Plaintiff's official-capacity damages claim against Cannon is subject to summary dismissal.
Sixth, and finally, Plaintiff cannot use § 1983 to get out of jail. Release from pretrial detention is simply not an available remedy in a § 1983 action. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (affirming the district court's dismissal of prisoners'§ 1983 claims, explaining that when "the relief [a prisoner] seeks is a determination that he is entitled to immediate release or a speedier release from [custody], his sole federal remedy is a writ of habeas corpus"); Hamilton v. Ninth Jud. Cir. Ct., No. 2:17-cv-921-MBS-MGB, 2017 WL 2373217, at *4 (D.S.C. May 3, 2017) (recommending summary dismissal of § 1983 claim seeking release from jail), report and recommendation adopted, 2017 WL 2362387 (D.S.C. May 31, 2017).
For the above reasons, the complaint is subject to summary dismissal for failing to state a claim.
C. Nature of Dismissal
If the Court agrees that the complaint should be dismissed, the undersigned recommends dismissing with prejudice. When a plaintiff could cure the factual defects in his claim by filing an amended pleading, a dismissal for failure to state a claim should be without prejudice and with leave to file an amended complaint. See see Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619, 628 (4th Cir. 2015). In the undersigned's opinion, however, the complaint contains no "potentially meritorious but inartfully pleaded claim[s]" that "might be revived by competent pleading." United States v. McLean, 566 F.3d 391, 397 (4th Cir. 2009). Rather, the complaint is frivolous and "substantively meritless." Id. Because amendment of the complaint cannot cure its defects, see id., the Court should dismiss the case with prejudice.
In addition, the undersigned finds the entire case subject to dismissal for being frivolous and for failing to state a claim. The undersigned therefore recommends designating the dismissal as a strike under 28 U.S.C. § 1915(g).
CONCLUSION
For the above reasons, the undersigned recommends dismissing the complaint, with prejudice and without service of process and designating the dismissal as a strike.
IT IS SO RECOMMENDED. November 22, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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 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).