Opinion
C/A No. 4:17-445-RMG-TER
03-29-2017
Travis Bellamy, #323612, Plaintiff, v. Parties listed in case 8:16-cv-3320 et al, Warden McFadden et al, Judge Robert E. Hood et al in expanded cases Defendants.
Report and Recommendation
This is a civil action filed by Plaintiff, a state prisoner proceeding pro se. Plaintiff has failed to pay the filing fee or apply for in forma pauperis status. Nonetheless, prior to authorization of issuance of service, the court may review sua sponte whether a complaint is frivolous or fails to state a claim upon which relief can be granted under the PLRA. 42 U.S.C. § 1997e. 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 cases and submit findings and recommendations to the district court.
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 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 is 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.). Moreover, the court possesses the inherent authority to ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous. Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012)(per curiam).
DISCUSSION
Habeas vs. § 1983
Plaintiff filed a Form AO241 ("Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody"). However, Plaintiff scratched out part of the title and typed Writ of Error and § 1983. Further, under the title "Petition" on the form, Plaintiff typed "Affidavit of Facts Giving Judicial Notice." (ECF No. 1 at 1). Plaintiff scratched out the word "Respondents" on the form and placed "defendants." Plaintiff did not answer the habeas form questions but typed text unrelated to the questions over the questions. (ECF No. 1). The clerk sent Plaintiff a blank civil rights complaint form, as well as other blank forms in order that Plaintiff bring this case into proper form. Plaintiff did not respond. Plaintiff's Filing, in various locations, presents contradictions as to the type of filing he attempts to pursue: "This Habeas Corpus is also filed pursuant to 2244d(1)(B)," "I am suing the United States under the Writ of Error and the other filed § 1983 independent actions for Fraud upon the Court," and "The Habeas Corpus petition(s) in their totality are filed under 42 U.S.C. § 1983, not 28 U.S.C. § 2254." (ECF No. 1 at 11, 13, 20). Plaintiff is laboring under an erroneous view of what law governs a habeas petition. Section 1983 does not involve habeas or relief in the form of release; 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).
In order to assert a plausible § 1983 claim against any particular state actor, a "causal connection" must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights).
The Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir. 2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights).
In § 1983 actions, defendants named must be actual individual persons, acting under color of law, who committed the act that violated plaintiff's constitutional rights and resulted in a specific injury. In habeas actions, the respondent must be the prisoner's custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 441 (2004).
In sum, the court treats Plaintiff's filing here as a § 1983 Complaint. Even if it were construed as a habeas petition, it would be successive and without authorization as Plaintiff's prior habeas petition was dismissed with prejudice as untimely under 28 U.S.C. § 2244(d). See Bellamy v. Warden, Lieber Correctional Institution, No. 4:16-3807-RMG (Mar. 3, 2017). Successive habeas petitions cannot be filed without first obtaining pre-filing authorization from the Fourth Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3)(A); Magwood v. Patterson, 561 U.S. 320, 331 (2010). Noninclusion of Documents Filed in Other Cases
Throughout his pleading, Plaintiff seeks to "expand the scope" and seeks "inclusion" of numerous lengthy pleadings and other documents submitted by himself and others in separate cases: Nos. 4:16-cv-3807-RMG-TER; 8:16-3328-RBH-JDA; 8:14-cv-3555-RBH-JDA; 4:16-cv-2939; 3101-3107; and 0:16-cv-992. (ECF No. 1 at 2-3). Additionally, Plaintiff indicates a desire to reinstate "[a]ll cases filed by Lawrence L. Crawford #300839 . . . pursuant to Rule 60(b)(3)(6)." (ECF No. 1 at 2). Plaintiff states that he is arguing the "same issues" as were raised in Case No. 8:14-cv-3555-RBH-JDA and Case No. 4:16-cv-2939; however, he does not list those issues or otherwise describe those issues other than to reference "religious and racial hatred due to the religious, political and social claims . . . ." (ECF No. 1 at 2-3). Plaintiff mentions a "(170) page document" that was filed in some other case or cases created "by Judge Cain's order" in Case No. 0:16-cv-992, asserting that "[a]ll those documents are now made a part of this case pursuant to expanding the scope seeking including, to include those documents filed in case 8:14-cv-355-RBH-JDA." (ECF No. 1 at 5). Plaintiff has not attached any of the pleadings that he seeks to incorporate to his Complaint.
Plaintiff also seems to assert that this case has a "connection to the Crawford case." (ECF No. 1 at 3). Plaintiff continues, "Lawrence L. Crawford is a Foreign Sovereign King, Khalifah, Imam and High Priest to The (4) Global Thrones of the Reestablished Global Theocratic State." (ECF No. 1 at 3). He cites to a state-court case (2013-CP-400-0084), in which he asserts default on such claim. (ECF No. 1 at 3). While less than clear, Plaintiff seems to argue that Magistrate Judge Austin of this court conspired with a member of the Supreme Court of South Carolina to "negate" that case through "fraud and machination." (ECF No. 1 at 4). Specifically, Plaintiff mentions "Judge Jean Toal" [of the Supreme Court of South Carolina] and disagrees with the result of the state-court case. (ECF No. 1 at 4). Plaintiff asserts that all judges of this court "must recuse and disqualify" themselves. (ECF No. 1 at 6). Plaintiff continues: "We motion for transfer to the State of New Jersey to be heard and consolidated to all cases involving the King-Khalifah pursuant to 28 U.S.C. § 1404." (ECF No. 1 at 6). Plaintiff provides no further information concerning any New Jersey cases.
Throughout the remaining 30-plus pages of text, Plaintiff asserts numerous objections to this court's orders in the previously cited cases. (ECF No. 1 at 7-36). As relief, Plaintiff asks this court to vacate his conviction and sentence and he asks that his "name and DNA [be] removed from all derogatory files," that this case be "transferred to New Jersey," and to be moved "to a pre-release camp pursuant to 28 U.S.C. § 1455(c)." (ECF No. 1 at 37).
As an initial matter, liberally construed, Plaintiff's numerous requests in his pleading "to expand the scope" and for "inclusion" of other arguments from different cases indicates an intent to incorporate outside documents by reference—an action governed by Federal Rule of Civil Procedure 10(c). Plaintiff's intent to incorporate these documents by reference cannot be fulfilled. Rule 10(c) does not permit the incorporation by reference of the contents of documents from separate cases. See, e.g., Muttathottil v. Mansfield, 381 F. App'x 454, 457 (5th Cir. 2010); Muhammad v. Bethel-Muhammad, No. 11-0690-WS-B, 2012 WL 1854315, *3 n.5 (S.D. Ala. 2012) ("In short, the viability of the plaintiff's action is to be measured by his amended complaint, not by the avalanche of other filings with which he has inexcusably flooded the Court and the litigants over the course of two lawsuits."); Langella v. Cercone, No. 09-cv-312E, 2010 WL 2402940, *6 n.1 (W.D. Pa. 2010) (Rule 10(c) does not allow pleader to incorporate "arguments raised in another party's motion to dismiss").
Moreover, excessive incorporation by reference is disfavored. See Hinton v. TransUnion, LLC, 654 F. Supp. 2d 440, 446-47 (E.D. Va. 2009) (excessive incorporation by reference in a pleading creates unnecessary confusion); Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1254, 1261 (M.D. Ala. 2001); see also Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007); 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure Civ. § 1326 (3d ed. 2004). Thus, the court will review the allegations contained on the four corners of the Complaint now under review and will not consider any documents filed or arguments raised in any other case in connection with the initial review of Plaintiff's pleading. It is not this court's responsibility to search another action's pleading to determine which, if any, of the arguments set forth in that pleading are applicable to this action. To advance a specific legal argument in his litigation, Plaintiff must take the time to fully set out such argument in his own pleading.
Furthermore, the apparent goal of the pleading under review is for Plaintiff to express his disagreement with the results of several cases previously filed and considered in this District as well as the outcome of a state-court case filed and considered in Richland County, South Carolina. Plaintiff's allegations about his displeasure, which comprise a large portion of his pleading, are not properly raised in this case because they are more appropriate for argument on appeal. Neither a subsequent § 1983 claim, a mandamus action, a writ of prohibition, nor a habeas corpus petition may be used as a substitute for an appeal when the litigant is unhappy with the result in prior litigation. See Holsey v. Bass, 519 F. Supp. 395, 413 (D. Md. 1981) (§ 1983 claim expressing unhappiness with the outcome of prior litigation is frivolous and not a substitute for appeal); see also In re Tollison, No. 16-1735, 2016 WL 6840075 (4th Cir. Nov. 21, 2016); In re Schumaker, 633 F. App'x 166 (4th Cir. 2016) (petition for writ of habeas corpus is not a substitute for appeal); In re Short, 21 F. App'x 147, at *1 (4th Cir. 2001) (petition for mandamus is not a substitute for appeal). Frivolous Action; Strike Pursuant to 28 U.S.C. § 1915(g)
Upon review, the entire instant action has no arguable basis in law; thus, it is frivolous. See Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (explaining that "[t]he word 'frivolous' is inherently elastic and 'not susceptible to categorical definition.'"); Worley v. Keller, 475 F. App'x 484 (4th Cir. 2012) (a suit is frivolous if it lacks an arguable basis in law or fact). As one example, Plaintiff's request to be placed in a federal prerelease camp is frivolous. He currently is in the custody of SCDC, not a federal agency; this Court does not have authority to decide prison transfers. See Meachum v. Fano, 427 U.S. 215, 225 (1976); McKune v. Lile, 536 U.S. 24, 39 (2002) (noting that the "decision where to house inmates is at the core of prison administrators' expertise"). Additionally, to the extent Plaintiff raises challenges to federal law based upon God's law or the law of "King Khalifah," this Court does not have jurisdiction. As a court of limited jurisdiction, the United States District Court for the District of South Carolina has no jurisdiction over religious disputes. See Serbian E.Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-12 (1976); EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 804-05 (4th Cir. 2000).
Therefore, it is recommended that this action be dismissed with prejudice based on frivolousness and designated a "strike" pursuant to 28 U.S.C. § 1915(g). See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Alternative Basis for Dismissal: Rule 41
In the alternative, Plaintiff's Complaint is subject to dismissal under Fed. R. Civ. P. 41. By Order dated February 24, 2017, Plaintiff was ordered to bring this case into proper form by fully completing a Complaint form, paying the filing fee or applying for in forma pauperis, and submitting summonses and Forms USM- 285. (ECF No. 4). The Court specifically informed Plaintiff that if he failed to comply with the court's order, this case would be subject to dismissal. The Court has not received any response from Plaintiff and the time for his compliance has passed.
The mail in which the order was sent to Plaintiff at the address provided has not been returned to the court, thus it is presumed that Plaintiff received the order, but has neglected to comply with the order within the time permitted under the orders.
Plaintiff's lack of response indicates an intent to not prosecute this case, and subjects this case to dismissal. See Fed. R. Civ. P. 41(b)(district courts may dismiss an action if a Plaintiff fails to comply with an order of the court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)(dismissal with prejudice appropriate where warning given); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982)(court may dismiss sua sponte). Thus, in the alternative, it is recommended that this action by dismissed pursuant to Fed. R. Civ. P. 41(b).
RECOMMENDATION
It is recommended that the District Court dismiss this action with prejudice and without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). It is further recommended that this action be designated a "strike" pursuant to 28 U.S.C. § 1915(g). See McLean v. United States, 566 F.3d 391, 393, 399 (4th Cir. 2009).
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge March 29, 2017
Florence, South Carolina
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).