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Spence v. Motor Vessel "Beast of Burden"

United States District Court, D. South Carolina

May 6, 2019

E. Lee Spence, Plaintiff,
v.
Motor Vessel “Beast of Burden”; John W. Tellam; and John/Jane Does, No. 1-10, Defendants.

          ORDER AND NOTICE

          Shiva V. Hodges United States Magistrate Judge.

         E. Lee Spence (“Plaintiff”), proceeding pro se, is before the court on his verified complaint in admiralty and complaint in rem for forfeiture. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge.

         I. Factual Background

         Plaintiff obtained title to an Abandoned Wreckage by order of The Honorable Sol Blatt, Jr., United States District Judge, in C/A No. 3:12-280 (“Spence I”). See Spence I at ECF No. 38. The Abandoned Wreckage is more fully described in Spence I, but for ease of reference, the undersigned refers to it as Spence I wreckage. Plaintiff alleges defendant John W. Tellam is the owner of the motor vessel identified as Beast of Burden. [ECF No. 1 at ¶¶45, 49-53]. Plaintiff advised Tellam that he owned the title to Spence I wreckage. Plaintiff claims that Tellam and others, using Beast of Burden, conducted salvage operations within the area of Spence I wreckage. Id. at ¶¶ 67-68. Pursuant to 18 U.S.C. §1658, Plaintiff asserts claims for plunder of a distressed vessel and conspiracy to plunder a distressed vessel. He also alleges common law larceny and seeks an action in rem for forfeiture of Beast of Burden.

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se complaint. Pro se complaints are held to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Erickson, 551 U.S. at 94 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555‒56 (2007)).

         Nonetheless, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Fed.R.Civ.P. 8 for “all civil actions”). 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 the plaintiff could prevail, it should do so; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Moreover, even when the filing fee is paid, the court possesses the inherent authority to ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous.[1] See Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005) (noting courts have “independent obligation to assess . . . subject-matter jurisdiction”).

         B. Analysis

         1. No Right to Criminal Prosecution of Another The first two counts in Plaintiff's verified complaint are for alleged violations of a criminal statute, 18 U.S.C. § 1658. These claims fail to state a claim upon which relief can be granted in a civil suit. A private individual such as Plaintiff has no right to pursue criminal charges filed against other private or public persons or entities by way of a civil lawsuit. Private citizens do not have a constitutional right to, or a judicially cognizable interest in, the prosecution or non-prosecution of another person. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see Diamond v. Charles, 476 U.S. 54, 64-65, (1986) (applying Linda R.S. v. Richard D. and collecting cases).

         2. Common Law Larceny

         To the extent Plaintiff asserts a common law claim again Tellam, he must demonstrate that the court has subject matter jurisdiction. Plaintiff has asserted that Defendant Tellam is a legal resident of Florida and requests over $75, 000 in damages. However, Plaintiff must show that Tellam is a citizen of a state other than South Carolina. The court notes that Plaintiff submitted a proposed summons for Tellam that contains no address. The undersigned notes that ...


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