United States District Court, D. South Carolina, Charleston Division
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
entered on December 12, 2017 (ECF No. 20). The Report
addresses Plaintiff Ronald Francis Croteaus's Amended
Complaint (ECF No. 12), recommending summary dismissal. (ECF
No. 20 at 16.) The Report also recommends that dismissal of
Plaintiff's Amended Complaint should count as a strike
under 28 U.S.C. § 1915(g). (Id.) After entry of
the Magistrate Judge's Report, Plaintiff filed Objections
to the Report (ECF No. 23) and a Motion to Amend his Amended
Complaint (ECF No. 30). For the reasons stated herein, the
court ACCEPTS the Report,
DISMISSES Plaintiff's Amended Complaint,
and DENIES Plaintiff's Motion to Amend.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 20 at 1-8.) As brief background,
Plaintiff, proceeding pro se and in forma pauperis, “is
a tax protestor, who in September 2008, filed three false and
fraudulent tax returns for tax years 2006, 2007, and
2008.” (Id. at 1.) Plaintiff was later
convicted, in the United States District Court for the Middle
District of Florida, of making false, fictitious, or
fraudulent claims on tax returns and corruptly interfering
with the administration of internal revenue laws.
(Id. at 2.) He appealed his convictions, which were
commenced the instant action on November 1, 2017. (ECF No.
1.) In his Amended Complaint, Plaintiff, who identifies
himself as “The Ambassador of Human Rights, ”
sues seventeen (17) defendants for various alleged
constitutional violations. (Id. at 2-3.) As the
Report accurately explains, “The allegations of the
Amended Complaint are quite difficult to follow. . . . which
is entirely based on Plaintiff's nonsensical theory
identified with the discredited ‘Sovereign Citizen'
movement.” (Id. at 3.) The Magistrate Judge
found that “[e]ven liberally construed, the Amended
Complaint is frivolous and fails to state a claim as a matter
of law, ” nothing that the “sovereign
citizen” theory has been rejected by several federal
courts. (Id. at 8- 9.) Even though the Magistrate
Judge concluded “this entire case is entirely
dismissible as frivolous, ” she found “numerous
additional grounds for dismissal are readily apparent,
” and briefly discussed them. (Id. at 10.) As
to Defendant United States District Judge Sheri Polster
Chappel, who presided over Plaintiff's criminal trial,
the Magistrate Judge found Judge Chappel was absolutely
immune from suit, and not subject to injunctive relief, for
judicial actions. (Id.) As to Defendant U.S.
Attorney Jeffrey Michelland, who was the prosecutor in
Plaintiff's criminal trial, the Magistrate Judge found
Plaintiff's claim that “the federal criminal
proceedings against him were ‘without
jurisdiction', ” had no factual basis.
(Id. at 11.) As to Defendant Michael Horowitz,
United States Inspector General, the Magistrate Judge found
“[t]he Amended Complaint does not coherently indicate
any reason why this federal official is named as a party.
[He] had nothing to with Plaintiff's criminal trial. . .
. [and] had no duty to respond to Plaintiff's
demands.” (Id.) As to Defendants David Joffe
and Neil Potter, Plaintiff's trial counsel, the
Magistrate Judge found attorneys do not act under color of
state of law when representing a criminal defendant, and,
therefore, are not amenable to suit under 42 U.S.C. §
1983. (Id. at 12.) As to Defendants Hudges, Rhodes,
Cano, Brown, and Comb, whom “Plaintiff appears to sue .
. . based on their supervisory positions, ” the
Magistrate Judge found “it is well-settled that there
is no respondeat superior liability in a
Bivens[v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), ] or §
1983 action.” (Id. at 13.) As to “the
federal defendants in their official capacity, ” the
Magistrate Judge found they are “subject to dismissal
based on sovereign immunity.” (Id. at 15.) The
Magistrate Judge also found Plaintiff's “Amended
Complaint fails to make personal allegations against each
Defendant that state a claim. Plaintiff appears to be
displeased with the results of his criminal case, but his
Amended Complaint alleges no legal basis for this
lawsuit.” (Id. at 11-12.) The Magistrate Judge
further observed that “[i]t is difficult to discern why
some of the Defendants are named in this suit, as Plaintiff
makes no allegations against them.” (Id. at
13.) Finally, the Magistrate Judge found that “[t]o the
extent Plaintiff is seeking release from custody, such remedy
is not available in this civil action” and “would
have to be timely raised in a motion pursuant to 28 U.S.C.
§ 2255 in the sentencing court.” (Id. at
15.) The Magistrate Judge recommends dismissing the Amended
Complaint “entirely for enumerated grounds (such as
frivolity and failure to state a claim) under 28 U.S.C.
§ 1915(e)(2)(B), ” and that “such dismissal
should count as a strike.” (Id. at 16 (citing
Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir.
2011) (holding that the entire case must be dismissed on
enumerated grounds to count as a strike)).)
December 20, 2017, Plaintiff filed a “Notice of
Objection and Appeal” to the Magistrate Judge's
Report. (ECF No. 23.) In his Objection, Plaintiff asserts
exceptional circumstances exist entitling him to the
appointment of counsel; lists several “Questions on
Appeal, ” and seeks discovery to
bring non-frivolous argument[s] to reverse existing Internal
Revenue Service laws and to bring factual contentions for
evidentiary support . . . for the right of this [P]laintiff
to have . . . assistance of counsel for further investigation
or discovery to comply fully with the requirements of Rule 11
[of the Federal Rules of Civil Procedure].
(Id. at 3.)
April 19, 2018, Plaintiff filed a “Motion to Amend
Complaint and to Question This Court[']s Subject Matter
Jurisdiction Under Equal Rights to Contract 42 U.S.C.
1981(a)(b)(c)” (“Motion to Amend”). (ECF
No. 30.) Plaintiff's Motion to Amend, like all of his
pleadings, are “quite difficult to follow.” (ECF
No. 20 at 3.) In this Motion, Plaintiff (1) asserts that he
is seeking reconsideration of this court's order (ECF No.
10) denying his Motion to Appoint Counsel (ECF No. 2); (2)
requests to remove several defendants, in accordance with the
Magistrate Judge's Report and add others; and (3) informs
the court that he has filed a habeas corpus petition. (ECF
No. 30 at 1-2.) Plaintiff also makes several claims based on
“[c]ontract [p]rinciples” and challenges his
underlying conviction, including the grand jury that indicted
him, arguing inter alia that only corporations can
be prosecuted. (Id. at 2-6.) He also “charges
[Defendants] with assassination of character[, ] holding
[Plaintiff's] custody level higher th[a]n community
custody based again on only the belief of a[n] over
ze[alous] US-Attorney . . . in this case.”
(Id. at 6.)
STANDARD OF REVIEW
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo determinations
of those portions of the Report and Recommendation to which
specific objections are made. See 28 U.S.C. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3). Thus,
the court may accept, reject, or modify, in whole or in part,
the Magistrate Judge's recommendation or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
to a Report must identify specific findings of the Report and
state the basis for objecting to those findings. Fed.R.Civ.P.
72(b). “[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, 316 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Failure to timely file a specific, written objection
to a Report will result in a waiver of the right to appeal
from an order based upon a Report. 28 U.S.C § 636(b)(1);
Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841, 845-47 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). If a party fails to properly object because the
objection lacks the requisite specificity, then de novo
review by the court is not required. See Suttles v.
Chater, No. 96-2138, 1997 WL 76900, at *1 (4th Cir. Feb.
25, 1997) (holding that “general, non-specific
objections” are not sufficient when objecting to a
magistrate judge's recommendation); Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1985)).
court is required to interpret pro se documents liberally and
will hold those documents to a less stringent standard than
those drafted by attorneys. See Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978); see also Hardin v.
United States, C/A No. 7:12-cv-0118-GRA, 2012 WL
3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally, pro se
documents must be construed in a manner, “no matter how
inartfully pleaded, to see whether they could provide a basis
for relief.” Garrett v. Elko, No. 95-7939,
1997 WL 457667, at *1 (4th Cir. Aug. 12, 1997).
Plaintiff filed objections to the Report, they “do not
direct the court to a specific error in the [M]agistrate
[Judge's] proposed findings and recommendation.”
Orpiano, 687 F.2d at 47. Rather, Plaintiff's
objections discuss exceptional circumstances he believes
entitle him to the appointment of counsel, and identifies
several “[q]uestions on [a]ppeal, ” such as,
“[P]ursuant to the [F]irst Amendment of the
Constitutions[, ] does this [P]laintiff have the legal right
under the law to change his persona name under a[n] Act of
State Contract to Ambassador of Human Rights and to enforce
this contract agreement to support his Spiritual Father
Yahweh?” (ECF No. 23 at 1-3.) The preceding quotation
demonstrates the substance of Plaintiff s objections:
inapposite and virtually incoherent. Therefore, the court
finds, even liberally construing Plaintiffs objections, that
Plaintiff has failed to advance any specific
objections to the Magistrate Judge's Report, and the
court adopts the Report herein. Camby, 718 F.2d at
199. Furthermore, as Plaintiffs Motion to Amend is of the
same quality as his objections, and does not address the
deficiencies identified by the Magistrate Judge in her
Report, namely the failure to state a claim, the court finds
the amendment would be futile. See Laber v. Harvey,438 F.3d 404, 426 (4th Cir. 2006) (“We have interpreted
Rule 15(a) [of the Federal Rules of Civil Procedure] to