United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending the complaint be
summarily dismissed. For the reasons set forth below, the
Court adopts the Report and Recommendation.
26, 2007, Plaintiff pleaded guilty to two counts of armed
robbery, assault and battery with intent to kill, and
kidnapping. Since his incarceration, he has filed numerous
civil cases in this District, which have been summarily
dismissed as frivolous. E.g., Case Nos. 2:17-208;
2:16-2676, 8:16-2582, 2:15-4014, 2:15-2510, 2:14-3215,
2:14-958, 2:13-3374. In the present case, Plaintiff seeks
"punitive damages in the amount of $75, 000 severally
and jointly for each defendant's role in the web of
conspiracy to deprive Plaintiff of due process of law/Equal
Treatment under color of state law, and depriving Plaintiff
of his immunities against systematic cruel and unusual
punishment; jury trial issues of facts" and injunctive
relief "to prohibit the usage of GA 1.03 Policy."
"GA 1.03" is the South Carolina Department of
Corrections policy that provides inmates access to the
courts, to attorneys, and to law libraries.
April 18, 2017, the Magistrate Judge recommended summary
dismissal of the complaint as a frivolous filing under 28
U.S.C. § 1915. Plaintiff filed no objections to the
Report and Recommendation.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "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, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
36-page amended complaint is patently frivolous for the
reasons the Magistrate Judge explains in considerable detail.
(See Dkt. No. 17 at 9-20.) In short, Plaintiff
claims that because he is a "sovereign citizen" or
secured creditor under the Uniform Commercial Code his
imprisonment violates his "sovereign immunity rights
protection secured to him by the Ninth and Tenth
Amendments." (See Dkt. No. 13-1.) Claims based
on a "sovereign citizen" theory are frivolous.
Gaskins v. South Carolina, No. 2:15-CV-2589-DCN,
2015 WL 6464440, at *4 (D.S.C. Oct. 26, 2015). Plaintiff also
asserts frivolous claims that imprisonment violates the
Thirteenth Amendment, that prison officials denied his
grievance filings, that he has not been allowed to make as
many photocopies as he wished, that he does not like his
prison cell assignment, and that U.S. District Judge Richard
Gergel, retired U.S. Magistrate Judge Wallace Dixon, and S.C.
Attorney General Alan Wilson have somehow conspired against
him. Those claims are also frivolous for the reasons the
Magistrate Judge ably sets forth.
the Prisoner Litigation Reform Act ("PLRA"),
Congress sought to reduce the number of frivolous lawsuits
flooding the federal courts." Blakely v. Wards,
738 F.3d 607, 609 (4th Cir. 2013). "Congress did so in
part by enacting 28 U.S.C. § 1915(g), a
"three-strikes" statute providing that if a
prisoner has already had three cases dismissed as frivolous,
malicious, or for failure to state a claim for which relief
may be granted, the prisoner generally may not proceed in
forma pauperis but rather must pay up-front all filing
fees for his subsequent suits." Id.
Court finds this action is frivolous and summarily dismisses
it for that reason. This is at least the third time this
Court has summarily dismissed an action brought by this
Plaintiff as frivolous. See Smalls v. Wilson, Civ.
No. 2:15-4014-MBS-MGB, 2016 WL 2731064, at *2 (D.S.C. May 11,
2016), aff'd, 670 F.App'x 803 (4th Cir.
2016); Smalls v. Wilson, Civ. No. 2:15-2510-RMG-MGB,
slip op. at 2 (D.S.C. Oct. 14, 2015). Petitioner now has
three "strikes." Absent exceptional circumstances,
he is now barred by statute from filing any future non-habeas
civil action in any federal court without full payment of the
foregoing reasons, the Court ADOPTS the Report and
Recommendation of the Magistrate Judge (Dkt. No. 17) as the
Order of the Court and DISMISSES WITH PREJUDICE the
complaint. The Court FINDS that the complaint is a frivolous
filing and therefore counts as a strike under 28 U.S.C.
§ 1915(g). This dismissal is Plaintiffs third strike
under 28 U.S.C. § 1915(g). The Court therefore ORDERS
that, absent exceptional circumstances, ...