Bey v. Duff

Reginald Gerrill Toomer Bey, Plaintiff, v. Magistrate John Duff, Sergeant Steven Evans, N. Charleston Police Department,N. Charleston Municipal Court, Defendants.

C/A No. 2:17-1004-RMG-BM

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

October 26, 2017

REPORT AND RECOMMENDATION

This is a civil action filed by the Plaintiff, Reginald Gerrill Toomer Bey, also known as Reginald Gerrill Toomer, pro se, and is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

Background

Plaintiff originally filed a partially completed and unsigned Complaint for a Civil Case form with attachments. ECF Nos. 1 and 1-1. He then filed additional attachments to the Complaint on June 29, 2017 (ECF No. 1-2) and October 19, 2017 (ECF Nos. 1-3, 1-4, 1-5, and 1-6). Plaintiff asserts that the bases for jurisdiction in this Court are federal question and diversity of citizenship, while in response to the question on the Complaint form requesting him to list the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that are at issue in this case, Plaintiff listed:

Treaty of Pace and Friendship 20, 21, U.S. Code 1590 Title 18 241, 242 US. Constitution Articles 4,5,6, The Rights of Indigenous Articles 11, 15, 2, 24, 8, 3, 4, 6, 14.

ECF No. 1 at 3 [errors in original].

In the "Statement of Claim" portion of the Complaint form, Plaintiff writes:

Policeman C. Ivory asked for license I replied that I did not need one [apparently because Plaintiff identifies himself as a "Moorish-American"]¹ I call for Assistance with the automoble accident and I gave C. Ivory the Document from the department of Transportation addressed to acting Governor of the State of South Carolina on right to travel.

ECF No. 1 at 5 [errors in original]. Plaintiff requests "that all colorable charges be dissmiss and the protection of my Rights to travel on my land." ECF No. 1at 5 [errors in original]. Plaintiff also requests monetary and other relief. See id., ECF No. 1-2.

A review of the records from Charleston County reveals that charges for driving without a license, 1 st offense, and seatbelt offense (non-criminal), were filed against the Plaintiff on February 24, 2017. On May 11, 2017, Plaintiff was tried in his absence in a bench trial, found guilty of both charges, and fined $155.00 on the driving without a license charge and $25.00 on the seatbelt charge. See Charleston County Public Index, http://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10101&Casenum=5102P0679273&CaseType=T; http://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10101&Casenum=5102P0679274&CaseType=T (last visited Oct. 19, 2017).²

Discussion

Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, 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. Further, while this Court is also required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the requirement of liberal construction does not mean that the Court can ignore a clear failure in a pleading to allege facts which set forth a claim currently cognizable in a federal court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.

Initially, Plaintiff's Complaint is subject to dismissal because it is characterized by what some courts have described as "buzzwords" or "legalistic gibberish." See, e.g., Rochester v. McKie, No. 8:11-797, 2011 WL 2671228, at *1 (D.S.C. July 8, 2011) (citing Yocum v. Summers, No. 91-3648, 1991 WL 171389, at *1 (N.D.Ill. Aug. 30, 1991)). Although Plaintiff mentions a treaty and lists the constitution as a basis for jurisdiction, his allegations are so generally incomprehensible and filled with what could only be considered by a reasonable person as unconnected, conclusory, and unsupported comments, or "gibberish," that it is unclear what is to be made of them. See Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) [Noting that federal courts lack power to entertain claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit"]; see also Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2nd Cir. 1998); Adams v. Rice, 40 F.3d 72 (4th Cir. 1994) [Affirming dismissal of plaintiff's suit as frivolous where allegations were conclusory and nonsensical on their face]. Thus, Plaintiff's Complaint is in violation of the directive in Federal Rule of Civil Procedure 8(a) that pleadings shall contain "a short and plain statement" of the basis for the court's jurisdiction and of the basis for a plaintiff's claims against each defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)[requiring, in order to avoid dismissal, "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'"].

Moreover, although Plaintiff cites the Treaty of "P[e]ace and Friendship" (which appears to refer to the Moroccan-American Treaty of Peace and Friendship) as a basis for jurisdiction in this case, courts have soundly rejected such claims. See Headen-El v. Keller, No. 1:11CV590, 2011 WL 3568282, at *2 (M.D.N.C. Aug. 15, 2011) ["The fact that a group claiming to be 'MoorishAmericans' has written documents that might support" the idea that the court lacks jurisdiction to prosecute and imprison them "does not establish a valid claim."]. Furthermore, the "Moroccan-American Treaty of Peace and Friendship, ratified by President Andrew Jackson on January 28, 1837...[, a]s its title indicates, is [a treaty] of 'Peace and Friendship' between the sovereign states of Morocco and the United States....It does not contain language suggesting that the United States, or any state or territory therein, does not have jurisdiction over a person violating the law within its jurisdiction." Pitt-Bey v. District of Columbia, 942 A.2d 1132, 1136 (D.C. 2008); see, e.g., Wilkerson v. Gozdan, No. 2:14cv731-MHT, 2014 WL 5112085, at *3 (M.D. Ala. Oct. 10, 2014) [explaining that "court[s] lack [] subject matter jurisdiction to enforce '[t]he Zodiac Constitution' or the 'Treaties of Peace and Friendship' "]; Jones-El v. South Carolina, No. 5:13-cv-01851-JMC, 2014 WL 958302, at *8 (D.S.C. Mar. 11, 2014) [rejecting habeas claims under the Zodiac Constitution and Treaty of Peace and Friendship as "completely frivolous, whether raised under § 2254, § 2241, or by way of civil complaint"]; El Ameen Bey v. Stumpf, 825 F.Supp.2d 537, 558 (D.N.J. 2007)[holding Treaty of Peace and Friendship has no impact on jurisdiction of courts].

Plaintiff also lists the United States Constitution, Articles IV (States-Reciprocal Relationship Between States and with United States), V (Amendments), and VI (Debts Validated—Supreme Law of Land—Oath of Office), as a basis for this lawsuit, but has provided no information as to how these provisions are a source of jurisdiction for his claims. Moreover, although Plaintiff references 18 U.S.C. §§ 241 and 242 (ECF No. 1 at 3), these are criminal statues that do not give rise to civil liability or authorize a private right of action. See United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003)[finding that the District Court properly dismisseddefendant's claim filed pursuant to 18 U.S.C. §§ 241 and 242 because he had no private right of action under either of those criminal statutes]; Wagner v. United States, 377 F.Supp.2d 505, 510-511 (D.S.C. 2005) [§ 241 is a criminal statute that provides no private cause of action]; Rockfeller v. U.S.Ct. of Appeals Office, 248 F.Supp.2d 17, 23 (D.D.C. 2003)[the plaintiff was precluded from bringing case under § 242 because there is no private cause of action under this criminal statute](collecting cases).

Liberally construing his Complaint, Plaintiff may be attempting to assert claims pursuant to 42 U.S.C. § 1983.³ However, he has failed to allege any comprehensible claim that any of his rights under the Constitution or the laws of the United States were violated. To the extent that Plaintiff is attempting to assert a claim for alleged constitutional violations and/or wrongdoing that may have led to his convictions for driving without a license and a seatbelt offense, he cannot recover damages on a § 1983 civil rights claim without first having his conviction reversed, expunged, or called into question by a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff has not asserted that these convictions have been reversed, expunged, or called into question by a writ of habeas corpus....