Opinion
C/A No. 6:19-1799-TMC-KFM
07-16-2019
Ortagus Demetrice Bennett, Plaintiff, v. Randy Smith, John Garrett, John & Jane Doe 1-10, James & Joan Doe 1-10, Defendants.
REPORT OF MAGISTRATE JUDGE
The plaintiff, proceeding pro se, brings this civil action seeking damages pursuant to the Racketeer Influenced and Corrupt Organization Act ("RICO"), 42 U.S.C. § 1983, 42 U.S.C. § 1981, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and various state law causes of action (doc. 1). 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.
BACKGROUND
The plaintiff seeks damages against Drug Enforcement Administration Agents Randy Smith and John Garrett, as well as various other DEA agents and state officers, for "erroneously" prosecuting him on federal and state charges, and for seizing his legitimate business proceeds as suspected drug money (doc. 1 at 3). He alleges that his federal charges were dismissed, but Agent Smith then conspired to have state charges brought against him, so as to delay the return of his seized money (id.). He further alleges these actions were unconstitutional, and that the defendants have continued in their "attempt to harass, intimidate and wreak terror and fear" in him (id. at 4). In his assorted claims, the plaintiff presents additional allegations, including: (Count 1) the defendants had "the assistance and participation" of South Carolina courts, prosecutors, and other law enforcement in committing various federal crimes, and that his prosecution and money seizure was "related to construction dollars from Middle Eastern repairs, renovations and construction work based on government activities related to the ongoing war efforts in other parts of the world"; (Count 4) that he was denied the same rights as white people; and (Count 7) that the defendants' actions interfered with his barbershop business and his "representation of a first round draft pick, Jadaveon Clowney" (id.).
The plaintiff alleges he has suffered humiliation, emotional distress, embarrassment, and lost wages. For relief, he seeks an injunction against continued criminal prosecution, and millions of dollars in damages (id. at 14-15).
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).
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. This court possesses the inherent authority to review the pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the pleading is not subject to the pre-screening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) . . . authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) (unpublished) (finding that "frivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted." (citations omitted)); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (finding that "district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee"). Accordingly, "[t]he present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous." Trawick v. Med. Univ. of S.C., C/A No. 2:16-730-DCN-MGB, 2016 WL 8650132, at *4 (D.S.C. June 28, 2016), Report and Recommendation adopted by 2016 WL 8650131 (D.S.C. July 7, 2016), aff'd 671 F. App'x 85 (4th Cir. 2016) (mem).
The plaintiff paid the full filing fee; thus, this case is not subject to the pre-screening provisions of 28 U.S.C. § 1915. Further, although the plaintiff has pending charges in the Greenville County Court of General Sessions, he is currently out on bond; thus, the case is not subject to the screening provided for in 28 U.S.C. § 1915A.
DISCUSSION
As an initial matter, the court takes judicial notice of the plaintiff's past civil and criminal proceedings in the United States District Court for the District of South Carolina, as well as the plaintiff's pending criminal charges in the Greenville County Court of General Sessions. See Bennett v. Special Inspector Gen. for Afghanistan Reconstruction, C/A No. 6:15-3620-TMC (D.S.C.); United States v. Bennett, Cr. No. 6:13-746-DCN-1 (D.S.C.); United States of Am. v. 25,000 dollars in US Currency, C/A No. 6:12-779-MGL (D.S.C.); United States v. Bennett, Cr. No. 6:11-714-GRA-1 (D.S.C.); Greenville County Public Index, https://www2.greenville county.org/SCJD/PublicIndex/PISearch.aspx, (enter the plaintiff's name) (last visited July 10, 2019). For the reasons that follow, the instant matter is subject to summary dismissal because the claims appear patently frivolous.
Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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 '[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'").
It is also unclear whether the plaintiff's allegations would be barred by 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. This is known as the "favorable termination" requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). Here, while some of the plaintiff's federal charges were dismissed with prejudice, others were dismissed with prejudice. See United States v. Bennett, Cr. No. 6:13-00746-DCN-1 (D.S.C.); United States v. Bennett, Cr. No. 6:11-714-GRA-1 (D.S.C.). Further, as indicated in correspondence filed by the plaintiff in a separate action, the state court has dismissed the plaintiff's charges "at this time." See Bennett v. Special Inspector Gen. for Afghanistan Reconstruction, C/A No. 6:15-3620-TMC, at doc. 29-4 at 2 (D.S.C.). Nevertheless, even if not barred by Heck, the plaintiff's complaint is subject to dismissal because it is frivolous.
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. 1:10-2751-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 plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
The plaintiff's complaint is comprised of factual allegations that are not credible, and which fail to state a claim for relief. The plaintiff references the dismissal of federal charges as the wellspring of his claims, but provides no valid factual allegations to credibly show that the charges lacked merit when sought, nor that their dismissal and subsequent state action gave rise to actionable claims here. His conclusory claims that federal agents conspired with others to prosecute him and seize his money for Middle Eastern projects, standing alone, are clearly delusional and frivolous, and they fail to show any arguable basis in fact or law. See Neal v. Duke Energy, C/A No. 6:11-1420-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, C/A No. 3:05-1933-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 F. App'x 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008).
Here, aside from alleging that the defendants are framing the plaintiff to cover up their illegal actions, the plaintiff's complaint contains only conclusory formulaic recitations of the elements of each cause of action. For example, the plaintiff's delusional allegations include that his pending state criminal charges are "spurious" and are "directly related to the illegal misconduct complained of herein" (doc. 1 at 9). Moreover, here, the plaintiff also seeks additional damages relating to the seizure of money from him during his criminal prosecutions, but he has already recovered the funds and litigated these matters. See States of Am. v. 25,000 dollars in US Currency, C/A No. 6:12-779-MGL (D.S.C.). As such, summary dismissal of the complaint is appropriate pursuant to the inherent authority of the court.
Although not identified by the plaintiff, it appears the pending charges he refers to may be his charges in the Greenville County Court of General Sessions for murder/attempted murder and possession of a weapon during a violent crime. See Greenville County Public Index (enter the plaintiff's name and 2017A2330203404, 2017A2330203405).
South Carolina State Law Claims
To the extent the plaintiff seeks damages due to the defendants' alleged violations of S.C. Code of Laws Sections 23-17-90 (regarding illegal arrest); 17-13-50 (regarding behavior required of officers during an arrest); and 23-17-20 (defining breach of duty by an officer), 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. Wisconsin Dep't of Corrections 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 complaint is patently frivolous and subject to summary dismissal. 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 his complaint. See Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619, 623 (4th Cir. 2015). As noted in more detail above, the instant action is subject to dismissal because the court lacks jurisdiction over frivolous matters—and the frivolity cannot be cured by mere amendment. Thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend his complaint. See Workman v. Kernell, C/A No. 6:18-355-RBH-KFM, 2018 WL 4826535, at *2 n.7 (D.S.C. Oct. 2, 2018); McSwain v. Jobs, C/A No. 1:13-890, 2014 WL 12672619, at *1 (M.D.N.C. Jan. 6, 2014) (noting that "given the preposterous and frivolous nature of [the plaintiff's] complaint, it would be a waste of limited judicial resources to give him an opportunity to amend."). Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. The undersigned also recommends that the court decline to exercise supplemental jurisdiction over the plaintiff's state law claims. The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge July 16, 2019
Greenville, South Carolina
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
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).