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
(R & R) of the Magistrate Judge, recommending dismissal
of the Complaint with prejudice (Dkt. No. 13.). For the
reasons set forth below, the Court adopts the Report and
Recommendation and dismisses the Complaint with prejudice.
is in jail at the Al Cannon Detention Center in North
Charleston, South Carolina. (Dkt. No. 1 at 13.) Plaintiff was
arrested for operating an uninsured motor vehicle without a
driver's license, and issues related to child support.
(Id. at 5.) Plaintiff claims to be a Moorish citizen
and that his arrest for the reasons above constitute
kidnapping. (Id. at 6; Dkt. No. 1-1 at 6.) Plaintiff
demands damages and new "rules to be set" to
prevent similar arrest from occurring in the future. (Dkt.
No. 1 at 7.) On November 22, 2019, the Magistrate Judge
issued an R&R recommending dismissal of the complaint
with prejudice and designating the dismissal as a strike
under 28 U.S.C. § 1915(g). (Dkt. No. 13.) On December 4,
2019, the Court received Plaintiffs timely objections, which
fail to address the Magistrate Judge's analysis and
instead present arguments based on the Universal Declaration
of Human Rights adopted by the United Nations in 1948 and
requests a jury trial. (Dkt. No. 15.)
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). 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 must make
a de novo determination of those portions of the R
& R Petitioner specifically objects to. Fed.R.Civ.P.
72(b)(2). Where Petitioner 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." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S. C. Dept. of Con.,
No. 9:14-CV-4365-RMG, 2015 WL 1124701, at * 1 (D.S.C. Mar.
12, 2015) citing Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983). Plaintiff has filed objections, and the R
& R is reviewed de novo.
complaint is frivolous for the reasons the Magistrate Judge
clearly sets forth in the R & R. In short, Plaintiff
claims his detention constitutes a kidnapping, seemingly
relying on a "Judicial Notice and Proclamation"
that, as a member of the Moorish Nation, he is immune from
taxation, criminal prosecution, and the jurisdiction of
American courts. (Dkt. Nos. 1 at 5; 1-1 at 8, 9.) As the
Magistrate Judge explained, these claims have repeatedly been
identified as frivolous by federal courts, and Plaintiffs
claims here are similarly frivolous. See Gaskins v. South
Carolina, No. 2:15-CV-2589 DCN, 2015 WL 6464440, at *4
(D.S.C. Oct. 26, 2015) ("Courts have repeatedly rejected
this baseless 'sovereign citizen' theory of
jurisdiction.") (collecting cases). Further, the
Magistrate Judge detailed why, even if the Complaint was not
frivolous, dismissal would still be appropriate as the
Complaint contains no plausible claims for relief,
specifically, as: failure to pay child support may become a
criminal matter; the statutes cited do not create private
causes of action; Plaintiff cannot rely on the Ninth
Amendment to make out a constitutional violation, and;
Plaintiffs claims suing Officer Fornandes and Sheriff Cannon
in their official capacity cannot proceed as claims. Finally,
Plaintiffs objections are frivolous and allege claims under a
United Nations declaration and do not address the analysis
and recommendations in Magistrate Judge's well-reasoned R
Magistrate Judge correctly held, while dismissals should be
without prejudice with leave to file an amended complaint
when a plaintiff could potentially cure any defects, the
Complaint here contains no "potentially meritorious but
inartfully pleaded claim[s]" that "might be revived
by competent pleading[.]" United States v.
McLean, 566 F.3d 391, 397 (4th Cir. 2009). Rather, the
complaint is frivolous and "substantively
meritless." Id. Therefore, the case is
dismissed with prejudice.
"[w]ith 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. The Court finds this action is frivolous holds
that this dismissal for prejudice counts as a strike under 28
U.S.C. § 1915(g).
foregoing reasons, the Court ADOPTS the
Report and Recommendation of the Magistrate Judge (Dkt. No.
13) as the Order of the Court and the Complaint is
DISMISSED WITH PREJUDICE.
The Court FINDS that the complaint is a
frivolous filing and therefore counts as a strike under 28
U.S.C. § 1915(g).