United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel, United States District Court Judge.
matter is before the Court on the Report and Recommendation
("R&R") of the Magistrate Judge, recommending
that this action be summarily dismissed without prejudice
under 28 U.S.C. § 1915(e)(2) and Fed.R.Civ.P. 12(b)(6)
because the action is frivolous and fails to state a
plausible claim for relief. (Dkt. No. 9.) Plaintiff DeWayne
Alphonza El-Bey, proceeding pro se and in forma
pauperis, has simultaneously 1) attempted to remove his
criminal traffic case from Municipal Court to this Court and
2) filed a Complaint under 42 U.S.C. § 1983 alleging that
defendants variously violated his Constitutional rights in
connection with his arrest at a routine traffic stop.
was pulled over by a police officer on or around May 6, 2016,
when the officer's license plate screening equipment
alerted the officer that Plaintiffs license plate had been
suspended because his insurance had been cancelled. Plaintiff
demanded to see the officer's credentials which the
officer retrieved from his car and displayed for Plaintiff.
Plaintiff nonetheless refused the officer's directions to
exit the vehicle. The officer, who had called for
reinforcements, then physically removed plaintiff from his
car. The police impounded Plaintiffs Hummer and its trailer.
Following a hearing in Municipal Court in July 2016,
Plaintiff was taken to a detention center to serve sixty days
in jail. (Dkt. No. 1 at 8-11.)
filed a self-styled "Legal Notice of Removal" (Dkt.
No. 1-1) in the present action to attempt to remove his
criminal traffic case from Municipal Court to this federal
Court. For the many reasons listed in the R&R, Plaintiff
has not and cannot remove his criminal traffic case to
federal court. (Dkt. No. 9 at 7-11.) The Municipal Court
maintains exclusive jurisdiction over Plaintiffs traffic
case. (Id. at 11.) Under 28 U.S.C. §
1915(e)(2), district courts must dismiss frivolous actions
brought by litigants proceeding in forma pauperis.
Plaintiffs attempt to remove his criminal traffic case to
federal court is frivolous because it lacks an arguable basis
in law or fact. Denton v. Hernandez, 504 U.S. 25, 31
(1992); McLean v. United States, 566 F.3d 391, 399
(4th Cir. 2009). Plaintiffs action is therefore appropriate
for dismissal under 28 U.S.C. § 1915(e)(2).
has also filed an action under 42 U.S.C. § 1983 seeking
damages for alleged violations of his First, Fourth, Fifth,
Sixth, and Fourteenth Amendment rights in connection with his
arrest and subsequent proceedings in Municipal Court.
Plaintiffs allegations are extensive and varied. Plaintiff
alleges that, during the course of his arrest, he was
"denied equal protection [because the officers] acted
very bias[ed] toward Plaintiffs religions [sic] belief;
"was arrested without a warrant"; was "NOT
read his Miranda rights"; was denationalized when he was
booked under a name he no longer uses, in violation of
national and international law; was "imprisoned absent
verified complaint"; and was arrested "without
cause or provocation" after he "exercise[ed] his
religious belief, plus rights and just wanted some
conformation [sic] that [the officer] had jurisdiction to
deny Plaintiff rights to religious freedom, practices,
unalienable, and absolute rights." (Dkt. No. 1 at 9-14.)
Plaintiff claims that the towing of his hummer "burdened
his exercise of religion" and that he was "denied
due process" at his Municipal Court hearing.
(Id. at 11, 13.) Despite these varied allegations,
the facts Plaintiff has provided indicate that he was
arrested and later convicted because he refused to comply
with an officer's request to exit his car at a traffic
stop. Plaintiff has not provided facts to support his many
various allegations of civil rights violations. Although
Plaintiff alleges that he was the victim of "assault
[and] battery, " Plaintiff has alleged only that the
officer pressed Plaintiffs head against the seat of his
Hummer causing "extreme pain, " and that the
handcuffs he was placed in "were extremely tight and was
[sic] cutting the blood circulation in his hands."
(Id. at 9.) The officers responded to Plaintiffs
complaint and loosened the handcuffs. (Id.)
Plaintiff has not alleged that he sustained any injuries
during the arrest.
allegations collectively amount to an argument that he was
illegally arrested for no reason, that defendants violated
his constitutional rights, and that his conviction and
sentence were illegal. Because these allegations imply the
invalidity of his conviction, the Supreme Court has held that
they "must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated, " Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). Under Heck, a conviction or sentence
has been invalidated if it has been "reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus." Id.
has not alleged and the record does not show that his
conviction has been invalidated in any way, so his Complaint
is subject to dismissal under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim.
Court therefore ADOPTS the Report and Recommendation (Dkt.
No. 9) as the Order of the Court, and SUMMARILY DISMISSES THE
COMPLAINT WITHOUT PREJUDICE.
FURTHER ORDERED that the Clerk refuse to accept any filings
by Plaintiff El-Bey without proper payment of required fees.
Plaintiff represented in his application to proceed in
district court without paying fees or costs that he has zero
wages, zero cash, zero money in a checking or savings
account, zero assets, zero regular monthly expenses, and zero
debts or other financial obligations. (Mot. for Leave to
Proceed in forma pauperis, El-Bey v. Culnon, et al,
No. 2:16-03239-RMG, Dkt. No. 3-1.) Plaintiffs responses
indicate that he misrepresented his financial condition or
did not make a good faith effort to accurately complete the
application. Under 28 U.S.C.A. § 1915(e)(2)(A), this
court shall dismiss a case at any time if it determines that
plaintiffs "allegation of poverty is untrue."
IS SO ORDERED.
 Plaintiff Submitted both a form
Complaint and a Complaint of his own attached to the form as
an exhibit (together, the ...