ASSA'AD-FALTAS v. CARTER et al
Filing
6
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/15/2014; that Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket Entry 1 ) is GRANTED FOR THE LIM ITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATIONOF DISMISSAL. FURTHER that, in light of the recommendation ofdismissal, Plaintiff's Motion for Leave to File Electronically (Docket Entry 4 ) is DENIED. RECOMMENDED that this action be dismissed under 28 U.S.C. § 1915(e)(2)(B) as frivolous and malicious, for failure to state a claim, and due to the immunity of some Defendants. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARIE-THERESE H. ASSA’AD-FALTAS,
Plaintiff,
v.
TANDY CARTER, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:14CV678
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Motion for
Leave to Proceed in forma pauperis (Docket Entry 1), filed in
conjunction with her pro se Complaint (Docket Entry 2) and Motion
for Leave to File Electronically (Docket Entry 4). For the reasons
that follow, the Court will permit Plaintiff to proceed as a pauper
solely to allow consideration of a recommendation of dismissal.
I.
Legal Background
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
Cir.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th
1995)
(en
banc)
(internal
“Dispensing
with
filing
fees,
problems. . . .
quotation
however,
[is]
marks
not
omitted).
without
its
In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th Cir. 2004).
address
this
concern,
the
in
forma
pauperis
(“IFP”)
To
statute
provides that “the court shall dismiss the case at any time if the
court determines . . . (B) the action . . . (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.”
28 U.S.C. § 1915(e)(2).
As to the first of these grounds, the United States Supreme
Court has explained that “a complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”
Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
In assessing such matters,
this Court may “apply common sense.”
Nasim, 64 F.3d at 954; see
also Nagy, 376 F.3d at 256-57 (“The word frivolous is inherently
elastic and not susceptible to categorical definition.” (internal
quotation marks omitted)).
Coordinately, “[a] complaint plainly
abusive of the judicial process is properly typed malicious.”
Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C. Cir. 1981); accord
Davis v. Shekita, No. 5:12CV504H, 2014 WL 2505485, at *3 (E.D.N.C.
June 3, 2014) (unpublished); Galeas v. Byrd, No. 3:11CV543RJC, 2011
WL 6370373, at *3 (W.D.N.C. Dec. 20, 2011) (unpublished), aff’d,
469 F. App’x 236 (4th Cir. 2012); see also Cain v. Virginia, 982 F.
Supp. 1132, 1136 (E.D. Va. 1997) (“[C]omplaints which merely repeat
2
previously
litigated
claims
may
be
dismissed
as
malicious.
However, maliciousness is not confined to such a narrow class of
complaints.
A litigant may be deemed to act maliciously if his
actions import a wish to vex, annoy, or injure another, or an
intent to do a wrongful act, and may consist in direct intention to
injure, or in reckless disregard of another’s rights.” (internal
brackets, citations, and quotation marks omitted)).
Alternatively, a plaintiff “fails to state a claim upon which
relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii), when the
complaint does not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
“Where
a
complaint
pleads
facts
that
are
‘merely
consistent with’ a defendant’s liability, it ‘stops short of the
line
between
relief.’”
possibility
and
plausibility
of
‘entitlement
Id. (quoting Twombly, 550 U.S. at 557).
to
This standard
“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Id.
In other words, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”
1
Id.1
Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
(continued...)
3
The third ground for dismissal under 28 U.S.C. § 1915(e)(2)(B)
generally applies to situations in which doctrines established by
the
United
States
Constitution
or
at
common
law
immunize
governments and/or government personnel from liability for damages.
See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984) (discussing sovereign immunity of states and state officials
under the Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967)
(describing
interrelationship
between
42
U.S.C.
§
1983
and
common-law immunity doctrines); cf. Allen v. Burke, 690 F.2d 376,
379
(4th
Cir.
1982)
(noting
that,
even
where
“damages
are
theoretically available under [certain] statutes . . ., in some
cases, immunity doctrines and special defenses, available only to
public officials, preclude or severely limit the damage remedy”).
II.
Plaintiff’s Complaint
Plaintiff’s Complaint alleges that she “was falsely arrested
and imprisoned . . . by the City of Columbia and Richland County
1
(...continued)
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (dismissing pro se complaint);
accord Atherton v. District of Columbia Off. of Mayor, 567 F.3d
672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be
held to less stringent standards than formal pleadings drafted by
lawyers.’
But even a pro se complainant must plead ‘factual
matter’ that permits the court to infer ‘more than the mere
possibility of misconduct.’” (quoting Erickson, 551 U.S. at 94, and
Iqbal, 556 U.S. at 679, respectively)).
4
Sheriff’s Department [and that] . . . [i]n the process of defending
herself, [she] discovered extreme corruption, criminality and/or
unconstitutionality in South Carolina state government and its
subdivisions . . . .”
(Docket Entry 2 at 2.)
As a result,
Plaintiff seeks monetary and non-monetary relief from (according to
the Complaint’s caption) over 100 Defendants, including the United
States Attorney for the District of South Carolina, the State of
South
Carolina,
Attorney
South
General,
Carolina’s
South
Governor,
Carolina’s
South
General
Carolina’s
Assembly,
South
Carolina’s Judicial Merit Selection Commission (“JMSC”), South
Carolina’s Supreme Court Chief Justice and Clerk, South Carolina’s
Court of Appeals Clerk and Deputy Clerk, the Sheriff of Richland
County, South Carolina, his Department (“RCSD”), and several of his
Deputies, the Mayor, City Council, and Assistant City Manager of
Columbia, South Carolina, the Columbia Police Department (“CPD”)
and 20 or more CPD officers, as well as numerous judges and
prosecutors in Richland County and Columbia.
(Id. at 1-2).
Consistent with the large number of governmental bodies and
high-ranking officials named as Defendants, the Complaint demands
declaratory and injunctive redress on an epic scale.
26
(requesting
that
the
Court
“declare
any
(See id. at
bond
condition
preventing a criminal defendant from returning to the only home she
has as per se violative of the Eighth Amendment . . . [and] a right
to immediate evidentiary hearing for every criminal defendant who
5
has evidence that the Prosecution intends to use falsehoods against
her”),
29
(proposing
that
the
Court
“hold
South
Carolina’s
harassment and stalking statute and unlawful use of a telephone
statute, as well as bond procedures wherein the alleged victim is
not sworn or cross-examined all unconstitutional”), 31 (seeking a
“find[ing] that CPD has become a crime syndicate and should be
dissolved immediately with all its members retrained before any of
them applies to be rehired by the to-be-newly-constituted unified
County law enforcement force”), 62 (praying that the Court “order
[the Sheriff of Richland County] to establish and maintain a
separate and safe detention facility for [Richland County’s] female
detainees with all due dispatch”), 64 (asking the Court “to hold
JMSC unconstitutional on its face and as applied to Plaintiff and
her
class,
to
order
JMSC
dissolved,
and
to
replace
[South
Carolina’s] peculiar system of election of judges with one of
popular election or election of new judges and retention of sitting
judges upon the nomination and vote of the sitting judiciary, and
not any other branch of government, with impeachment preserved”).)
However, despite such grand objectives, by its express terms:
This Complaint addresses only: (a)(i) the Wednesday, 2
December 2009, false arrest of Plaintiff on two false
charges of harassment “in the first degree” of which she
was fully and finally exonerated in September/October
2012 and (a)(ii) all robbery and ransacking of
Plaintiff’s apartment and car that day under invalid
search and seizure warrants and procedures; (b)(i) the
false arrest of Plaintiff on Saturday, 12 December 2009,
on false charge of “unlawful use of telephone” which was
resolved in her favor on 6 October 2010, and (b)(ii)
6
Defendants’ continued efforts to bring that false charge
to trial until July 2012 and March 2013; and (c)(i)
Plaintiff’s 23 March 2011 false arrest by RCSD on false
charge of “trespass” unto the public courthouse, and
(c)(ii) the continued unjustified denial of Plaintiff’s
access to the Richland County courthouse and to the CMC
[Columbia Municipal Court] building and the services both
offer to the public.
Claims for any and all acts of other entities . . . and
for any and all other acts of [D]efendants . . . are
expressly reserved for other complaints . . . .
(Id. at 3-4 (bold in original); see also id. at 6-32 (setting out
245 paragraphs of allegations under heading “The False Arrest and
Imprisonment on the False Harassment Charges”), 32-50 (setting out
57
paragraphs
of
allegations
and
incorporating
15
pages
of
purported transcript excerpts under heading “The Saturday, 12
December 2009 False Arrest on False Charges of Unlawful Use of
Telephone”), 50-62 (setting out 65 paragraphs of allegations under
heading
“The
False
23
March
2011
Arrest,
Imprisonment,
and
Deliberate Indifference to Medical Needs”), 62-64 (setting out 18
paragraphs
of
allegations
under
heading
“South
Carolina’s
Unconstitutional Judicial Systems”), and 64-70 (setting out 35
paragraphs of allegations under heading “Motion for Injunction
against [South Carolina’s Supreme Court Chief Justice] in her
Administrative Capacity”).)2
2
The Complaint’s above-referenced final two sections (Docket
Entry 2 at 62-70) seek injunctive relief disconnected from the
substance of the claims identified by the Complaint as the
exclusive focus of this action (compare id., with id. at 3-4, 662).
This Memorandum Opinion therefore will not address those
(continued...)
7
III.
Plaintiff’s Prior Closely-Related Litigation
The Complaint acknowledges that Plaintiff previously pursued
relief for the above-identified events, but emphasizes that “[n]one
of the causes of action herein was previously dismissed with
prejudice.”
(Id. at 3 (emphasis in original).)
In fact, the
United States District Court for the District of South Carolina has
reviewed most (if not all) of Plaintiff’s instant claims and has
found
them
legally
deficient
and/or
frivolous
(although
it
nonetheless dismissed such claims without prejudice); specifically:
1) in Assa’ad-Faltas v. City of Columbia, SC, No. 3:13CV2715,
2013 U.S. Dist. LEXIS 188115 (D.S.C. Nov. 1, 2013) (unpublished),
recommendation adopted, 2014 U.S. Dist. LEXIS 87526 (D.S.C. June
26, 2014), the district court accepted the recommendation of
“summary
dismissal”
of
claims
that
a
CPD
officer
“illegally
arrested [Plaintiff] on December 12, 2009, for unlawful use of a
telephone,” as well as that the defendants unlawfully “‘continued
efforts to bring that false charge to trial until July 2012 and
March 2013,’” Assa’ad-Faltas, 2013 U.S. Dist. LEXIS 188115, at *1013 (quoting paragraph four of Plaintiff’s complaint in said case)),
2
(...continued)
relief requests because “[the Fourth Circuit] will vacate an
injunction if it . . . does not carefully address only the
circumstances of the case.” PBM Prods., LLC v. Mead Johnson & Co.,
639 F.3d 111, 128 (4th Cir. 2011) (internal quotation marks
omitted) (emphasis added); see also Hayes v. North State Law
Enforcement Officers Ass’n, 10 F.3d 207, 217 (4th Cir. 1993)
(“[I]njunctive relief . . . should not go beyond the extent of the
established violation.”).
8
although the district court effected the dismissal of the entire
action (and thus the foregoing claims) without prejudice, Assa’adFaltas, 2014 U.S. Dist. LEXIS 87526, at *3;3
2) in Assa’ad-Faltas v. Richland Cnty. Sheriff’s Dep’t, No.
3:13CV1629, 2013 WL 5273817 (D.S.C. Aug. 26, 2013) (unpublished),
a United States Magistrate Judge, considering Plaintiff’s claims
for damages and injunctive relief, inter alia, because (A) a South
Carolina circuit court judge “issued a ‘bizarre’ order on April 1,
2010, limiting Plaintiff’s access to the RCJC [Richland County
Judicial
Center],”
id.
at
*1,
(B)
another
such
judge
later
“concurr[ed] with th[at] order,” id. at *2, and (C) on March 23,
2011, RCSD deputies arrested Plaintiff for trespassing at the RCJC,
id., concluded that said circuit court judges “[we]re entitled to
summary dismissal . . . [of] claims [for damages and injunctive
relief] associated with their judicial actions to include the
issuance of orders,” id. at *4, and that Plaintiff’s claim(s)
related to her trespassing arrest failed under Federal Rule of
Civil Procedure 8(a), id. at *6, whereafter the district court
agreed with those conclusions and dismissed the action (albeit
again without prejudice) and the Fourth Circuit affirmed, Assa’adFaltas v. Richland Cnty. Sheriff’s Dep’t, No. 3:13CV1629, 2013 WL
3
The caption of Plaintiff’s Complaint in this Court includes
as Defendants approximately two dozen entities and individuals also
so-named in the above-cited case. (Compare Docket Entry 2 at 1-2,
with Assa’ad-Faltas, No. 3:13CV2715, Docket Entry 1 at 1.)
9
5273813 (D.S.C. Sept. 17, 2013) (unpublished), aff’d, ___ F. App’x
___, 2014 WL 2199375 (4th Cir. May 28, 2014) (unpublished);4
3) in Assa’ad-Faltas v. Toal, No. 3:12CV2991 (D.S.C.), Docket
Entry 1, Plaintiff alleged that she “was falsely arrested on 2
December 2009 on false charges of harassment in the first degree,”
id. at 1, and that, “on 23 March 2011, [a RCSO deputy] also falsely
arrested [her] on false charges of ‘trespass after notice,’” id. at
2; however, after “carefully review[ing] [] [P]laintiff’s claims
. . ., [the district] [c]ourt f[ound] it apparent and clear from
the face of the complaint that [P]laintiff fail[ed] to state a
claim on which relief may be granted, and, in addition, that
[P]laintiff’s
allegations
in
the
above-captioned
case
[we]re
frivolous,” Assa’ad-Faltas v. Toal, No. 3:12CV2991, Docket Entry 62
(D.S.C. Apr. 16, 2013) (unpublished) (dismissing action without
prejudice), aff’d, 546 F. App’x 286 (4th Cir. 2013).5
IV.
The
Plaintiff’s Broader Litigation History
foregoing
cases
represent
only
a
small
Plaintiff’s prodigious record of pro se litigation.
fraction
of
A search of
4
In ordering that dismissal, the district court adopted the
Magistrate Judge’s recommendation, except as to the proposed
granting to Plaintiff of leave to file a second amended complaint
asserting claims against the RCSD deputies involved in Plaintiff’s
trespassing arrest. See Assa’ad-Faltas, 2013 WL 5273813, at *2-3.
5
Plaintiff named about two dozen of the individuals and
entities that appear as Defendants in the caption of her Complaint
here in the above-cited case as well. (Compare Docket Entry 2 at
1-2, with Assa’ad-Faltas, No. 3:12CV2991, Docket Entry 1 at 1.)
10
the PACER database revealed that, from 1987 to 2009, she commenced
approximately a dozen federal actions and two dozen federal appeals
and that, remarkably, from 2010 to the present, she instituted more
than two dozen additional federal actions and more than two dozen
additional federal appeals.
See https://pcl.uscourts.gov (search
for Plaintiff’s name) (last performed Aug. 22, 2014).
Moreover,
judicial decisions show that Plaintiff repeatedly has abused the
litigation process (both in state and federal courts); for example:
1) in Assa’ad v. Thomas, 87 N.C. App. 276, 277-79, 360 S.E.2d
503, 504-05 (1987), the court (while affirming the directed verdict
entered
against
Plaintiff
on
her
medical
malpractice
claim)
declared that “Plaintiff ha[d] failed to follow the Rules of
Appellate Procedure . . . , she ha[d] attempted to advance many
immaterial and irrelevant arguments . . . [,and she had identified]
no evidence in the record as to what th[e] defendant did or failed
to do in performance of duties to [P]laintiff”;
2) in Assa’ad-Faltas v. Virginia, 738 F. Supp. 982, 985-87
(E.D. Va. 1989), aff’d, Nos. 89-3283, 89-3302, 902 F.2d 1564
(table), 1990 WL 64620 (4th Cir. July 2, 1990) (unpublished), the
district court (in addition to dismissing Plaintiff’s federal
claims and declining to exercise jurisdiction over related state
claims) “considered [her] motion in support of sanctions against
[the] defendants and her motion for transfer or change of venue
. . . [and] f[ound] that both of th[o]se motions [we]re frivolous”;
11
3) in Assa’ad v. John Umstead Hosp., No. 1:87CV465, Docket
Entry 220 (M.D.N.C. Aug. 15, 1989) (unpublished), United States
Magistrate Judge P. Trevor Sharp ordered expense-shifting and
sanctions against Plaintiff during the discovery phase;
4) in Assa’ad-Faltas v. University of S.C., 971 F. Supp. 985,
988-91 (D.S.C. 1997), the district court (per now-United States
Circuit Judge Dennis W. Shedd) ruled that, “in th[o]se proceedings,
as
well
as
at
least
one
other
[then]
before
th[e]
[c]ourt,
[Plaintiff] ha[d] waged an aggressive (and abusive) attack,” that
she failed to properly respond to court-directives designed to
determine whether she should retain IFP status, and “that allowing
[her] to proceed IFP . . . clearly does not promote the interests
of justice but, instead, contributes to the problems in our legal
system that are associated with IFP litigation”;6
6
In that (and prior) cases, “[Plaintiff] did not complete the
standard IFP application but, instead, filed a ‘motion for leave to
proceed IFP.’” Assa’ad-Faltas, 971 F. Supp. at 988 n.4. She did
the same thing in this case. (Docket Entry 1 at 1.) As Judge
Shedd observed in the case before him, “the information contained
in [Plaintiff’s] motions is not as detailed as that required by the
standard IFP application,” Assa’ad-Faltas, 971 F. Supp. at 988 n.4.
(See Docket Entry 1 at 1.)
Perhaps most notably, Plaintiff’s
instant Motion for Leave to Proceed IFP does not disclose property
she owns or its value (see id.), but her Complaint clearly
acknowledges ownership of property in which Plaintiff anticipates
investing substantial resources (see, e.g., Docket Entry 2 at 18
(“[O]n 12 March 2009 [Plaintiff’s] mother and [Plaintiff] bought a
small parcel adjacent to [her landlord’s] two quadriplexes . . .
and on it [Plaintiff] plans to build . . . [a] completely solar
house.”)). Nonetheless, given the recommendation of dismissal, the
Court need not investigate further Plaintiff’s showing of poverty.
12
5) in Assa’ad-Faltas v. University of S.C., Nos. 96-2159, 971243, 165 F.3d 910 (table), 1998 WL 792209, at *1 (4th Cir. Nov.
16, 1998) (unpublished), Plaintiff appealed the “dismissal of her
civil action for abuse of the discovery process,” but the Fourth
Circuit held that her “repeated failures to produce documents and
comply with discovery orders, combined with her demeanor during her
deposition, fully warranted the sanction of dismissal”;
6) in Koon v. Fares, 666 S.E.2d 230, 233-34, 379 S.C. 150,
155-57 (2008), while affirming entry of summary judgment against
Plaintiff and her mother in a landlord-tenant case, the South
Carolina Supreme Court noted that the construction of the lease
advocated by Plaintiff and her mother would have led to an “absurd
result,” that Plaintiff and her mother sought “to take advantage of
[their] [l]andlord’s generosity” during the dispute, and that
Plaintiff and her mother made “completely unfounded” allegations of
bias against the circuit court judge who handled the case; and
7)
in
Assa’ad-Faltas
v.
Regional
Postal
Inspector,
No.
3:12CV463, 2012 WL 3308107, at *1-2 (W.D.N.C. Aug. 13, 2012)
(unpublished), the district court construed Plaintiff’s complaint
as “seek[ing] redress stemming from civil and criminal judgments
obtained against her and negative experiences with state and local
officials in the City of Columbia . . . [as well as] various
injunctive and declarative relief against the State of South
Carolina, including changes to its general laws, election laws, and
13
its court system . . . [, and ruled that her] claims [we]re largely
frivolous and/or malicious, and [she] fail[ed] to state a claim.”
V.
Section 1915(e)(2)(B) Analysis
Consistent with her prior litigation history,7 Plaintiff’s
Complaint represents an abuse of the court system, in that it
presents frivolous and malicious allegations, it fails to state a
claim, and it targets Defendants with immunity, all of which
circumstances require dismissal, see 28 U.S.C. § 1915(e)(2)(B).
A.
Overarching Frivolous/Malicious Aspects of this Action
For purposes of Section 1915(e)(2)(B), an action’s frivolity
or maliciousness may arise from a number of circumstances.
e.g., Nagy, 376 F.3d at 256-57; Cain, 982 F. Supp. at 1136.
See,
In
this case, several matters pertaining to the Complaint as a whole
render it frivolous and malicious.
i.
Legal Frivolousness/Maliciousness
In the first instance, the Complaint’s venue allegations
qualify as legally frivolous.
By statute:
A civil action may be brought in--
7
The above-cited rulings adverse to Plaintiff and the related
criticisms of her litigation conduct conclusively refute the
Complaint’s assertion “that [she] has been a highly successful pro
se advocate whose legal skills and decorum have been praised by all
judges before who she advocated except [D]efendants herein who are
City employees” (Docket Entry 2 at 70).
Moreover, the Court
properly may consider Plaintiff’s documented history of abusive
litigation, because “[a] plaintiff’s past litigious conduct should
inform a district court’s discretion under § 1915[(e)(2)(B)].”
Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (en banc).
14
(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated; or
(3) if there is no
otherwise be brought
judicial district in
the court’s personal
action.
district in which an action may
as provided in this section, any
which any defendant is subject to
jurisdiction with respect to such
28 U.S.C. § 1391(b); see also IHFC Props., LLC v. APA Mktg., Inc.,
850 F. Supp. 2d 604, 615 (M.D.N.C. 2012) (Schroeder, J.) (“The
burden is on the plaintiff to establish . . . venue in the judicial
district where the action is brought.”); Hickey v. St. Martin’s
Press, Inc., 978 F. Supp. 230, 240 (D. Md. 1997) (“[I]n a case
involving multiple defendants and multiple claims, the plaintiff
bears the burden of showing that venue is appropriate as to each
claim and as to each defendant.”).
Plaintiff’s Complaint alleges no facts establishing proper
venue over all claims and all Defendants under Section 1391(b), but
instead asserts, in relevant part, as follows:
1. Venue is proper herein as the lead defendants, upon
information and belief, reside in this district and all
other defendants who reside in, or have a principal place
of business in, South Carolina also transact substantial
business in North Carolina and with the federal
government and thus may be sued here.
2. To the extent the state of South Carolina is sued for
injunctive relief, venue is still proper in this Court as
South Carolina transacts substantial business in North
Carolina, including riparian reallocation. Please see,
15
South Carolina v. North Carolina, before the U.S. Supreme
Court (voluntarily dismissed).
(Docket Entry 2 at 5; see also id. at 1-2 (describing two of 100plus Defendants as “North Carolina resident[s]” and two additional
Defendants as “North Carolina substantial property owners”).)
Plaintiff cannot rely on the allegation that two Defendants
reside in this district to support venue for her Complaint here,
because any particular defendant’s residence in a district provides
a basis for venue over other defendants only if all defendants in
the case reside in the same state, see 28 U.S.C. § 1391(b)(1), and
(as
quoted
above)
the
Complaint
acknowledges
individual Defendants reside in South Carolina.8
Defendant’s
Carolina
“transacting”
similarly
falls
of
“substantial
short,
8
that
Reliance on any
business”
because,
numerous
in
North
although
such
As previously noted, the Complaint’s caption identifies the
United States Attorney for the District of South Carolina as a
Defendant (apparently in his official capacity (see Docket Entry 2
at 2)) and “[a] civil action in which a defendant is an officer or
employee of the United States or any agency thereof acting in his
official capacity . . . may, except as otherwise provided by law,
be brought in any judicial district in which (A) a defendant in the
action resides,” 28 U.S.C. § 1391(e)(1); however, “[a]dditional
persons may be joined as parties to any such action in accordance
with the Federal Rules of Civil Procedure and with such other venue
requirements as would be applicable if the United States or one of
its officers, employees, or agencies were not a party,” id.
Accordingly, although Plaintiff arguably could rely on Section
1391(e)(1) to proceed in this Court against the United States
Attorney for the District of South Carolina and the two individual
Defendants who allegedly reside in this district (as well as any
entities deemed to reside here, see 28 U.S.C. § 1391(c)(2)), she
must establish venue under Section 1391(b) to proceed in this Court
against the individual Defendants who reside in South Carolina.
16
considerations might give this Court personal jurisdiction over any
such Defendant, see generally Hanes Cos., Inc. v. Galvin Bros.,
Inc., No. 1:09CV918, 2013 WL 594013, at *4-6 (M.D.N.C. Feb. 15,
2013) (unpublished) (discussing personal jurisdiction standards),
recommendation adopted, 2013 WL 941791 (M.D.N.C. Mar. 11, 2013)
(unpublished), the existence of personal jurisdiction only equates
to residency for venue purposes as to organizational defendants
(not individual defendants), see 28 U.S.C. § 1391(c)(1) & (2).9
Moreover, the Complaint makes clear that all alleged, material
events and omissions occurred in South Carolina. (See Docket Entry
2 at 2-70.)
As a result, venue lies in the District of South
Carolina, but not in this district, under Section 1391(b)(2), see
generally Bartko v. Wheeler, No. 1:13CV1006, 2014 WL 29441, at *811
(M.D.N.C.
Jan.
3,
2014)
(unpublished)
(discussing
Section
1391(b)(2)’s “substantial part of the events or omissions” test),
aff’d, slip op. (M.D.N.C. Feb. 10, 2014), and the existence of
venue in the District of South Carolina under Section 1391(b)(2)
renders Section 1391(b)(3) inapplicable. Accordingly, no basis for
venue over all claims and Defendants exists in this district and
this action thus cannot proceed here, see 28 U.S.C. § 1406(a) (“The
district court of a district in which is filed a case laying venue
in the wrong division or district shall dismiss, or if it be in the
9
Nor does a defendant’s transacting business with the federal
government have any bearing on venue. See 28 U.S.C. § 1391.
17
interest of justice, transfer such case to any district or division
in which it could have been brought.” (emphasis added)).10
The
Complaint’s
legal
frivolousness
also
comes
from
its
failure to identify which claim(s) pertain(s) to which Defendants
(see Docket Entry 2 at 2-70), in flagrant contravention of Federal
Rule of Civil Procedure 8(a)(2)’s “short and plain statement of the
claim” requirement, see Masters v. Johnson, Nos. 89-35323, 35325,
35330-33, 35352, 35356-57, 35363-64, 902 F.2d 1579 (table), 1990 WL
67204, at *1 (9th Cir. May 16, 1990) (unpublished); O’Neill v. El
Paso Cnty. Sheriff’s Dep’t, No. 14CV2114BNB, 2014 WL 3820710, at *2
(D. Colo. Aug. 4, 2014) (unpublished); Tully v. Bank of Am., N.A.,
Civil No. 10-4734DWF/ JSM, 2011 WL 1882665, at *6 (D. Minn. May 17,
2011) (unpublished).11
Plaintiff’s failure in this regard may
represent an effort to mask her Complaint’s gross misjoinder of
claims and Defendants (again, in violation of applicable rules).
10
Given Plaintiff’s history of litigation abuse (discussed in
Section IV) and the other facial defects of the Complaint (shown in
Section V), the interests of justice do not support transfer.
11
As noted in Section II, the Complaint addresses:
1)
Plaintiff’s alleged false arrest for harassment and the purportedly
improper, related searches on December 2, 2009; 2) her alleged
false arrest for unlawful use of a telephone on December 9, 2009,
and the purportedly wrongful efforts to prosecute such charge in
July 2012 and March 2013; and 3) her alleged false arrest for
trespassing at a public building on March 23, 2011, and her
purported continuing unlawful exclusion from such buildings.
(Docket Entry 2 at 3-4.) A review of the Complaint confirms that
the vast majority of Defendants had, at most, a discernible,
alleged connection to but one of those matters. (See id. at 6-70.)
18
Specifically, “[a] party . . . may join, as independent or
alternative claims, as many claims as it has against an opposing
party.”
Fed. R. Civ. P. 18(a) (emphasis added).
claims against a single party are fine . . . .”
507 F.3d 605, 607 (7th Cir. 2007).
plaintiff
seeks
to
join
multiple
“Thus multiple
George v. Smith,
However, where, as here, a
claims
against
multiple
defendants, “[p]ersons . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact
common to all defendants will arise in the action.”
Fed. R. Civ.
P. 20(a)(2) (emphasis added).
As with the pleading in George, Plaintiff’s Complaint does
“not make any effort to show that the [100-plus] defendants [s]he
named had
participated
in
the
same
transaction
or
series
of
transactions or that a question of [law or] fact is common to all
defendants,” George, 507 F.3d at 607 (internal quotation marks
omitted).
(See Docket Entry 2 at 2-70.)
Nor can the Court
construe the Complaint to satisfy such standards, particularly
given that (as shown in Section III) Plaintiff effectively took
three distinct lawsuits she previously filed in the District of
South Carolina (involving, inter alia, arrests by different law
enforcement officers from different law enforcement agencies more
19
than a year apart) and attempted to cram them into one action in
this Court.
form.
The Complaint therefore cannot proceed in its present
See Fed. R. Civ. P. 21 (providing for dropping of parties or
severance of claims to address misjoinder).
Yet another species of legal frivolousness arises from the
fact that, in the Complaint’s caption and title, as well as in its
body, Plaintiff purports to seek “qui tam recovery” and/or to
proceed on behalf of a class (see, e.g., Docket Entry 2 at 1-3, 6364), something her pro se status prohibits, see, e.g., United
States ex rel. Brooks v. Lockheed Martin Corp., 237 F. App’x 802,
803 (4th Cir. 2007) (“A lay person may not bring a qui tam action
under the False Claims Act.”); Myers v. Loudoun Cnty. Pub. Sch.,
418 F.3d 395, 400 (4th Cir. 2005) (“An individual unquestionably
has the right to litigate his own claims in federal court . . .,
however, [that
right]
does not
create
a
coordinate
right to
litigate for others.” (emphasis in original)); Lang v. Nordstrom,
Inc., No. 00–1236, 229 F.3d 1143 (table), 2000 WL 1124534, at *1
(4th Cir. Aug. 9, 2000) (unpublished) (“[T]he district court
properly dismissed [the plaintiff’s] action to the extent that he
sought to bring a class action because, as a pro se litigant, [he]
was not an appropriate class representative.”) (citing Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)).
The fact that
Plaintiff persisted in framing her Complaint in this fashion after
at least two other courts explained to her the impropriety of such
20
conduct, see Assa’ad-Faltas v. South Carolina, No. 3:12CV1786, 2012
U.S.
Dist.
LEXIS
175343,
at
*16-18
(D.S.C.
Nov.
14,
2012)
(unpublished), recommendation adopted, 2012 U.S. Dist. LEXIS 174559
(D.S.C. Dec. 7, 2012), appeal dismissed, No. 13-1034 (4th Cir. June
26,
2013)
Inspector,
(unpublished);
Assa’ad-Faltas
No.
at
3:12CV435,
1-2
v.
(W.D.N.C.
Regional
July
23,
Postal
2012)
(unpublished), underscores the abusive nature of this litigation,
see generally Cain, 982 F. Supp. at 1136.12
Further
grounds
for
dismissal
stem
from
the
Complaint’s
pursuit of federal constitutional claims (via 42 U.S.C. § 1983)
against the State of South Carolina, as well as various of its
agencies
and
officials
(in
their
official
limiting such claims to prospective relief).
at 1-5, 50, 62.)
capacities
without
(See Docket Entry 2
The Supreme Court made clear the impropriety of
such action a quarter-century ago, see Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 66-71 (1989), and at least one federal
court previously has advised Plaintiff of that fact, see Assa’ad-
12
Additionally, the Complaint’s “qui tam” theory apparently
revolves around the notion that Plaintiff would “recover for the
federal sovereign the funds Defendants took under pretext of
protecting public safety and running courts but misspent” (Docket
Entry 2 at 3), but the Complaint lacks any factual matter showing
either that any Defendant received any federal funds for public
safety or court operations or that any Defendant misspent any such
funds (see id. at 2-70). Because “Plaintiff’s claims [a]re lacking
in the[se] most basic elements [the Court concludes] that Plaintiff
knew, or should have known, [that] making the claims [was]
frivolous.” Wisdom v. Centerville Fire Dist., Inc., No. CV07-95-SEJL, 2010 WL 468094, at *2 (D. Idaho Feb. 4, 2010) (unpublished).
21
Faltas, 2012 U.S. Dist. LEXIS 175343, at *24-26 & nn.13-15.
Her
persistence in lodging such claims under such circumstances marks
this action as both legally frivolous and malicious. See generally
Neitzke, 490 U.S. at 325; Cain, 982 F. Supp. at 1136.
Similarly, the Complaint’s targeting of judges and prosecutors
ignores established immunity doctrines, see, e.g., Buckley v.
Fitzsimmons, 509 U.S. 259 (1993); Stump v. Sparkman, 435 U.S. 349
(1978); Lyles v. Sparks, 79 F.3d 372 (4th Cir. 1996); Chu v.
Griffith, 771 F.2d 79 (4th Cir. 1985). “[T]he absolute immunity of
the defendant would justify the dismissal of a claim as frivolous.”
Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 n.2
(11th Cir. 1990).
Moreover, by ignoring prior decisions that
specifically advised Plaintiff of the futility of suing judges and
prosecutors, see, e.g., Assa’ad-Faltas, 2013 U.S. Dist. LEXIS
188115, at *6-7 ; Assa’ad-Faltas, 2012 U.S. Dist. LEXIS 175343, at
*19-21,
27-29,
her
Complaint
maliciously
abuses
the
judicial
process, see generally Cain, 982 F. Supp. at 1136.
For all of these reasons, Section 1915(e)(2)(B) requires
dismissal of this action as legally frivolous and malicious.
ii.
Factual Frivolousness/Maliciousness
The Complaint also rests on a factually frivolous foundation,
i.e., that, in the course of nobly fending off efforts by numerous
individuals to frame her, Plaintiff “discovered extreme corruption,
criminality and/or unconstitutionality in South Carolina state
22
government and its subdivisions” (Docket Entry 2 at 2).
The
Supreme Court has identified factually frivolous complaints as ones
involving
“allegations
delusional.
As
those
that
are
fanciful,
words
suggest,
a
fantastic,
finding
of
and
factual
frivolousness is appropriate when the facts alleged rise to the
level of the irrational or the wholly incredible, whether or not
there are judicially noticeable facts available to contradict
them.”
Denton v. Hernandez, 504 U.S. 25, 32–33 (1992) (internal
citations and quotation marks omitted).
Put another way, the IFP
statute “permit[s] the [C]ourt to apply common sense [and] reject
the fantastic . . . .”
Applying
common
Nasim, 64 F.3d at 954.
sense,
the
undersigned
Magistrate
Judge
concludes that Plaintiff’s Complaint relies at its core on a host
of fantastic and wholly incredible allegations, such as:
1)
“Plaintiff
[]
was
falsely
arrested
and
imprisoned
mercilessly as if she were an animal seven times without probable
cause by the City of Columbia and [RCSD] because she and her mother
had, in March 2009, unknowingly bought land under and across which
[Plaintiff’s landlord] had illegally and surreptitiously run the
sewer lines from two adjacent rental quadriplexes” (Docket Entry 2
at 2 (italics and bold in original));
2) “[t]he sheer number of [D]efendants . . . is the natural
cause and result of a framing scheme requiring overt acts and
23
negligent omissions of every link in the framing as this very Court
saw in the Duke lacrosse case” (id. at 3);
3) “CPD’s corruption and incompetence [has] reached such
severity as to compromise national security” (id. at 7);
4) City of Columbia “residents are terrorized by an armed
force headed by a chief answerable to no one or to layers of
bureaucracy” (id.);
5) the City of Columbia “arrested [Plaintiff] repeatedly to
make her:
(a) halt her public criticism of CPD, (b) plead gulity
to false charges brought by CPD in conspiracy with [her former
landlords], (c) surrender her land to them, and (d) relent her push
to reopen the cold-case murder of [her most recent landlord’s
husband/boyfriend’s] second wife” (id. at 8 (italics in original));
6) the City of Columbia’s “political process has been hijacked
by CPD’s cadre who pack City Council meetings (set to air CPD’s
problems) with patronage employees, their relatives and friends who
address such overt threats to City Counsel [sic] members . . . [as]
to foreclose elected civilian control . . . [, which] risks turning
the City [of Columbia] into a police dictatorship” (id. at 9
(italics in original);
7)
“[k]nowing
[Plaintiff’s]
mother
co-owns
her
land,
[attorneys hired by Plaintiff’s landlord] began conspiring with
[her landlord] to cause [Plaintiff’s] mother’s death and run
[Plaintiff] off from Columbia” (id. at 22);
24
8) “the hope and the plan [of Defendants] was for [Plaintiff]
to resist arrest [on December 2, 2009] and be killed in the process
with many CPD officers present to testify that her shooting was
justified” (id. at 25);
9) Defendants “aimed to deplete [Plaintiffs’] health, time,
energy, reputation, and family resources, and cause her death if
necessary, all to prevent her from exonerating herself after she
was arrested, and if she exonerated herself . . ., to prevent her
from suing for damages and from exposing other official and private
wrong-doing” (id. at 52);
10) “South Carolina is unable to afford [Plaintiff] any state
judge who is unbiased and unchilled” (id. at 63 (italics in
original)); and
11) “[t]he tax-payer dollars the City of Columbia, [RCSD], and
others
spend
trying
to
get
[Plaintiff]
falsely
accused
and
convicted strongly indicate that said entities are engaged in
illegalities and want to discredit and silence [Plaintiff] for
criticizing them” (id. at 68-69).
“[C]onspiracy theory claims like Plaintiff’s are routinely
dismissed as frivolous . . . .”
Seymour v. United States Dep’t of
Def., No. 10CV983JLS(JMA), 2011 WL 761547, at *4 n.5 (S.D. Cal.
Feb. 24, 2011) (unpublished) (internal brackets and quotation marks
omitted) (citing cases); see also Tooley v. Napolitano, 586 F.3d
1006, 1009 (D.C. Cir. 2009) (“We recognize that in a nation of 300
25
million people, with millions of government employees, some are
bound at
any
given
counterproductively,
inanely.
moment
to
be acting
mistakenly,
unwisely,
maliciously,
foolishly,
viciously,
even
But the particular combination of sloth, fanaticism,
inanity and technical genius alleged here seems to us to move these
allegations into the realm of claims flimsier than doubtful or
questionable – essentially fictitious . . . .” (internal ellipses
and quotation marks omitted)).
Plaintiff’s insistence on dragging
numerous state judges and court staff into her ever-expanding web
of
litigation
further
marks
frivolous and malicious.
her
Complaint
as
both
factually
See, e.g., In re Martin-Trigona, 9 F.3d
226, 230 (2d Cir. 1993) (“Making judges defendants in a repetitive
series of lawsuits whenever a judge rules against a litigant is
also a tactic employed by many vexatious litigants . . . .”).
In sum, the Court should dismiss this entire action under
Section 1915(e)(2)(B) as factually frivolous and malicious.
B.
Harassment Arrest and Search(es) on December 2, 2009
The first “claim” in the Complaint concerns the “2 December
2009, false arrest of Plaintiff on two false charges of harassment
‘in the first degree’ . . . and [] all robbery and ransacking of
Plaintiff’s apartment and car that day under invalid search and
seizure warrants
and
procedures[.]”
(Docket
Entry
2
at
3-4
(internal bold omitted) (emphasis added); see also id. at 6-32
(setting out claim under heading “The False Arrest and Imprisonment
26
on the False Harassment Charges”).)
As discussed in Section III,
in Assa’ad-Faltas, No. 3:12CV2991, Plaintiff similarly alleged that
she “was falsely arrested on 2 December 2009 on false charges of
harassment in the first degree,” but the United States District
Court for the District of South Carolina “f[ound] it apparent and
clear from the face of the complaint that [P]laintiff fail[ed] to
state a claim on which relief may be granted, and, in addition,
that [P]laintiff’s allegations in the above-captioned case [we]re
frivolous.”
The same conclusions arise here, requiring dismissal
of the instant claim(s) under Section 1915(e)(2)(B).
As
a
preliminary
matter,
Plaintiff’s
Complaint
fails
to
request any appropriate relief related to the events of December 2,
2009. Unlike with Plaintiff’s claims regarding arrests on December
12, 2009, and March 23, 2011, Plaintiff’s claim(s) for false
arrest/imprisonment and unlawful search(es) on December 2, 2009,
do(es) not include a concluding paragraph labeled “Prayers for
Relief.”
(Compare Docket Entry 2 at 31-32, with id. at 50, 62.)
Moreover, the final paragraph of the instant claim(s) concedes that
Plaintiff has not properly requested damages or an injunction in
relation thereto, but instead asks that the Court “allow her to
amend [her Complaint] and supplement it with exhibits as soon as
practicable,
for
costs
and
damages,
and
for
an
immediate
restraining order followed by a hearing, and for such further
relief as the Court deems just and proper.”
27
(Id. at 32.)
If
Plaintiff cannot properly allege a claim for damages or injunctive
relief nearly five years after the occurrences on December 2, 2009,
the Court should not wait to adjudicate her claim(s) as to such
matters until she amends her Complaint.
Alternatively, to the
extent the Complaint does request damages and/or non-monetary
relief in connection with the instant claim(s), the Court (for a
number
of
reasons)
should
find
such
request(s)
and/or
the
underlying claim(s) frivolous and/or legally insufficient (thus
rendering them subject to dismissal under Section 1915(e)(2)(B)).
i.
Legal Frivolousness/Insufficiency
First, the patent, facial untimeliness of the false arrest/
imprisonment and invalid search claim(s) that stem from events on
December 2, 2009, makes such claim(s) legally frivolous.
See
Nasim, 64 F.3d at 955-56. Claims for false arrest/imprisonment and
illegal search sound under the Fourth Amendment to the United
States Constitution, see Kimmelman v. Morrison, 477 U.S. 365, 374
(1986) (“The gravamen of a Fourth Amendment claim is that the
complainant’s legitimate expectation of privacy has been violated
by an illegal search or seizure.”); Rogers v. Pendleton, 249 F.3d
279, 294 (4th Cir. 2001) (“[F]alse arrest and false imprisonment
claims . . . are essentially claims alleging a seizure of the
person in violation of the Fourth
Amendment . . . .”), and
“Section 1983 of Title 42 [of the United States Code] creates a
cause of action against any person who, acting under color of state
28
law, abridges a right arising under the Constitution or laws of the
United States,” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir.
2013).13
A three-year statute of limitations applies to such
claims. See Wilson v. Garcia, 471 U.S. 261, 276-80 (1985) (holding
that, in Section 1983 actions, state personal injury limitations
period controls); Heyward v. Monroe, No. 97-2430, 166 F.3d 332
(table),
1998
WL
841494,
at
*3
(4th
Cir.
Dec.
7,
1998)
(unpublished) (“The statute of limitations for [Section 1983]
causes of action arising in South Carolina is three years.” (citing
S.C. Code § 15-3-530(5))); Brooks v. City of Winston-Salem, 85 F.3d
178, 181 (4th Cir. 1996) (applying North Carolina’s three-year
limitations period for personal injuries to Section 1983 actions).
The question therefore becomes when the three-year statute of
limitations for Plaintiff’s instant claim(s) for false arrest/
imprisonment and unlawful search(es) began to run.
“[T]he accrual
date of a § 1983 cause of action is a question of federal law
. . . conforming in general to common-law tort principles.
Under
those principles, it is the standard rule that accrual occurs when
the plaintiff has a complete and present cause of action . . . .”
Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal brackets
citations, and quotation marks omitted).
13
The Complaint specifically invokes the Constitution and
Section 1983. (Docket Entry 2 at 4.)
29
“There can be no doubt that [Plaintiff] could have filed suit
as soon as the allegedly wrongful arrest[/imprisonment/search]
occurred . . ., so the statute of limitations would normally
commence to run from that date.”
Id.
However, “[t]he running of
the statute of limitations on false imprisonment is subject to a
distinctive rule — dictated, perhaps by the reality that the victim
may not be able to sue while he is still imprisoned:
Limitations
begin to run against an action for false imprisonment when the
alleged false imprisonment ends.”
marks omitted).
Id. at 389 (internal quotation
“Reflective of the fact that false imprisonment
consists of detention without legal process, a false imprisonment
ends once the victim becomes held pursuant to such process — when,
for example, he is bound over by a magistrate or arraigned on
charges.” Id. (italics in original). Here, the Complaint concedes
that Plaintiff appeared before a judicial official on December 2,
2009, and bonded out on December 4, 2009.
40.)
(Docket Entry 2 at 38,
Plaintiff’s three-year period to bring her instant false
arrest/imprisonment and illegal search claim(s) thus began to run
no later than December 4, 2009, and expired on or before December
4, 2012, long before she filed this action on August 13, 2014 (see
Docket Entry 2 at 1 (bearing file-stamp of August 13, 2014); see
also id. at 70 (dating Complaint as signed on August 12, 2014).14
14
Despite the clarity of the above-referenced, controlling
authority, the Complaint asserts that “the false arrest and
(continued...)
30
Second, Plaintiff’s instant false arrest/imprisonment claim(s)
fail(s) as a matter of law (and, indeed, so lack(s) an arguable
basis as to qualify as frivolous) because the Complaint admits that
CPD officers arrested her for harassment in the first degree on
December 2, 2009, pursuant to a warrant (see id. at 25).
“[A]
public official cannot be charged with false arrest when he arrests
a defendant pursuant to a facially valid warrant.”
Porterfield v.
Lott, 156 F.3d 563, 568 (4th Cir. 1998) (citing Brooks, 85 F.3d at
181-82).15
Similarly, “[c]laims of false imprisonment address
14
(...continued)
imprisonment charges [are] timely brought well within the statute
of limitations as keyed, not from the date of the false arrest, but
from the date of the final resolution in favor of [Plaintiff].”
(Docket Entry 2 at 5; see also id. at 28-29 (“The harassment
charges . . . were finally called for trial . . . on 13 August
2012. [Plaintiff] pro se ably argued for, and was granted, their
final dismissal WITH PREJUDICE. Because under SC state law, the
Prosecution has ten (10) days to appeal judicial dismissal, and the
final resolution in favor of the criminal defendant is not
considered final until an order of expungment [sic] issues, the
final resolution in favor of [Plaintiff] did not occur until
October 2012. In any event, this [C]omplaint is comfortably timely
under Heck v. Humphrey.” (capitalization as in original) (bold
omitted)).)
Plaintiff thus appears to contend, as have others
before her, “that Heck v. Humphrey, 512 U.S. [] 477 [(1994)],
compels the conclusion that h[er] suit could not accrue until the
State dropped its charges against h[er],” Wallace, 549 U.S. at 392.
The Supreme Court, however, expressly has rejected that position
and, instead, has mandated that a person aggrieved by an alleged
false arrest/imprisonment institute any federal damages action
within three years of the end of custody without judicial process,
even if related state criminal charges remain pending, with the
understanding that the federal court may stay any such civil
proceedings until the state criminal case ends. Id. at 392-94.
15
The Complaint alleges no facts that undermine the facial
validity of the warrant(s) at issue. (See Docket Entry 2 at 6-32.)
31
detainment of an individual ‘without legal process;’ thus, when an
arrest is made pursuant to an arrest warrant, there is no false
imprisonment.” Simmons v. Atkinson, No. 1:11CV110, 2013 WL 633587,
at *3 (M.D.N.C. Feb. 20, 2013) (unpublished); accord Magwood v.
United States Dist. Ct., C/A No. 2:13-307-DCN-BM, 2013 WL 869590,
at *4 (D.S.C. Feb. 25, 2013) (unpublished), recommendation adopted,
2013
WL
869579
(D.S.C.
Mar.
7,
2013)
(unpublished),
appeal
dismissed, 544 F. App’x 199 (4th Cir. 2013); Adams v. Parsons,
Civil Action No. 2:10-0423, 2011 WL 1464856, at *4 (S.D.W. Va. Apr.
15, 2011) (unpublished); Bellamy v. Wells, 548 F. Supp. 2d 234, 237
(W.D. Va. 2008); Peacock v. Mayor & City Council of Baltimore, 199
F. Supp. 2d 306, 309 (D. Md. 2002).
Third,
Plaintiff’s
instant
claim
of
“invalid
search
and
seizure warrants and procedures” (Docket Entry 2 at 4) fails as a
matter of law because she has offered insufficient, non-fanciful
factual allegations
to
establish
any
constitutional
related to the search warrants (see id. at 6-32).
violation
In other words,
“[the] [C]omplaint does not adequately plead such a claim.
It
merely alleges in conclusory fashion that the procurement and
execution of the [challenged] search warrant . . . violated [her]
constitutional rights.
‘Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.’”
2012)
Martin v. Hilkey, 460 F. App’x 760, 762 (10th Cir.
(quoting
Iqbal,
556
U.S.
32
at
678)
(internal
brackets,
citations, and some quotation marks omitted); see also Gonzales v.
City of Fostoria, No. 3:13CV796, 2014 WL 99114, at *8 (N.D. Ohio
Jan. 9, 2014) (unpublished) (“In their complaint, [the plaintiffs]
have
not
identified
any
false
statements
application for the search warrant.
contained
in
the
In addition, they fail to
identify how [any] alleged false information was material to the
state court judge’s finding of probable cause.
Because their
complaint fails to plead [such] facts . . ., [their] Fourth
Amendment allegations regarding the search warrant are dismissed
with prejudice.”); Moore v. City of N.Y., No. 08CV2449(RRM)(LB),
2011 WL 795103, at *3 (E.D.N.Y. Feb. 28, 2011) (unpublished)
(“[The] [p]laintiff’s [a]mended [c]omplaint contains nothing more
than vague, circular, and conclusory allegations of an invidious
conspiracy. . . . Moreover, aside from his conspiracy allegations,
[the]
[p]laintiff
has
not
demonstrated
how
the
issuance
and
execution of the search warrant violated his constitutional rights
. . . .
In short, [the] [p]laintiff’s conclusory allegations are
not entitled to the presumption of truth, Iqbal, [556 U.S. at 68081], and accordingly, his § 1983 claims . . . are dismissed for
failure to state a claim upon which relief can be granted.”).
Fourth,
Plaintiff’s
instant
claim(s)
for
false
arrest/
imprisonment and illegal search(es) cannot support the declaratory
and injunctive relief mentioned in that section of the Complaint.
Buried within the 25-plus pages of single-spaced allegations in the
33
Complaint’s section entitled “The False Arrest and Imprisonment on
the False Harassment Charges” (Docket Entry 2 at 6-32), these
references to non-monetary redress appear:
1) “[Plaintiff] prays this Court to declare any bond condition
preventing a criminal defendant from returning to the only home she
has as per se violative of the Eighth Amendment” (id. at 26);
2)
“[Plaintiff]
prays
the
Court
to
declare
a
right
to
immediate evidentiary hearing for every criminal defendant who has
evidence that the Prosecution intends to use falsehoods” (id.);
3) “[Plaintiff] prays this Court to hold South Carolina’s
harassment and stalking statute and unlawful use of a telephone
statute, as well as bond procedures wherein the alleged victim is
not sworn or cross-examined all unconstitutional” (id. at 29);
4) “[Plaintiff] prays this Court to hold an immediate hearing
on CPD’s role in the fabrication and falsification of evidence
against her and against others and to find that CPD has become a
crime syndicate and should be dissolved immediately with all its
members retrained before any of them applies to be rehired by the
to-be-newly-constituted unified County law enforcement force” (id.
at 31);
5) “[Plaintiff] also prays this Court to order [the United
States Attorney for the District of South Carolina and others] to
release the results of their months-long investigation into CPD
misconduct and incompetence” (id.); and
34
6) “[Plaintiff] prays this Court to order [South Carolina’s]
Attorney General [] to review all [South Carolina] statutes held
unconstitutional by the [South Carolina] or U.S. Supreme Courts
and/or by federal courts to cause SC’s [sic] to repeal and/or to
rewrite them . . . [and,] [i]n the interim, [Plaintiff prays] this
Court [to] enjoin their enforcement by any and all officers in
South Carolina, specially CPD (id.).
This Court’s authority to afford declaratory relief arises
only “[i]n a case of actual controversy within its jurisdiction
. . . upon the filing of an appropriate pleading . . . .”
28 U.S.C. § 2201(a).
“Basically, the question in each case is
whether the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”
Maryland Cas. Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273 (1941).
In the context of
challenges to the constitutionality of state criminal laws, a
federal court may consider declaratory relief when a “federal
plaintiff
demonstrates
a
genuine
threat
of
enforcement
of
a
disputed state criminal statute, whether an attack is made on the
constitutionality of the statute on its face or as applied.”
Steffel v. Thompson, 415 U.S. 452, 475 (1974).
Even greater restrictions apply to injunctive relief, which
“is not a remedy which issues as of course,” Weinberger v. Romero-
35
Barcelo,
456
omitted).
U.S.
305,
311
(1982)
(internal
quotation
marks
Most notably, federal courts “should pay particular
regard for the public consequences in employing the extraordinary
remedy
of
injunction
.
.
.
and
a
federal
judge
sitting
as
chancellor is not mechanically obligated to grant an injunction for
every violation of law.”
Id. at 312-13.
Further, “injunctive
relief . . . should not go beyond the extent of the established
violation.”
Hayes v. North State Law Enforcement Officers Ass’n,
10 F.3d 207, 217 (4th Cir. 1993).
“In other words, [the Fourth
Circuit] will vacate an injunction if it . . . does not carefully
address only the circumstances of the case.”
PBM Prods., LLC v.
Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir. 2011) (emphasis
added) (internal quotation marks omitted).
Pursuant
to
the
explicit
language
of
the
Complaint,
Plaintiff’s instant claim(s) related to her harassment arrest on
December 2, 2009, concern only alleged Fourth Amendment violations
for false arrest/imprisonment and unlawful search(es). (See Docket
Entry 2 at 3-4.)
Any other claims for matters pertaining to the
harassment charge(s) “are expressly reserved for other complaints
. . . .”
for
(Id. at 4 (bold in original).)
declaratory
or
injunctive
relief
Accordingly, any request
addressed
to
(1)
bond
conditions/procedures and the Eighth Amendment, (2) evidentiary
hearings to prevent prosecutors from relying on false evidence or
to
ferret
out
fabrication
of
evidence
36
by
the
CPD,
(3)
the
constitutionality of South Carolina statutes other than the one
criminalizing harassment, and (4) any investigation by a United
States Attorney into the general conduct and competence of the CPD
falls outside the realm of Plaintiff’s instant false arrest/
imprisonment and invalid search claim(s) (and thus beyond the
jurisdiction
of
this
Court
and/or
its
equitable
authority).
Further, an injunction dissolving the CPD in favor of a new law
enforcement agency of the Court’s own creation would so far exceed
the scope of the alleged Fourth Amendment violation(s) on December
2, 2009, and would portend such troubling public consequences as to
constitute a clear abuse of the Court’s discretion in equity.
The only remaining relief request in this section of the
Complaint asks the Court to strike down/bar enforcement of South
Carolina’s harassment statute, which generally bars “intentional,
substantial, and unreasonable intrusion into the private life of a
targeted person that serves no legitimate purpose and causes the
person and would cause a reasonable person in his position to
suffer mental or emotional distress,” S.C. Code § 16-3-1700(A) &
(B); see also S.C. Code §§ 16-3-1710, 16-3-1720 (setting penalties
for violations of S.C. Code § 16-3-1700(A) & (B), respectively).
According to the Complaint, said statute “on its face criminalizes
free speech and freedom of movement . . . [and] is also void for
vagueness [and] violates the Fourth, Fifth, Eighth and Fourteenth
Amendments, [while] accomplish[ing] nothing that existing laws
37
against assault, damage to property, battery, and/or breaking and
entering do not or that civil causes of action may not compensate.”
(Docket Entry 2 at 29.)
The Complaint, however, does not allege
facts establishing a case or controversy that would allow the Court
to invalidate South Carolina’s harassment statute.
In that regard, the Complaint acknowledges that, on August 13,
2012 (two years before Plaintiff filed this action), she secured
final
dismissal
(with
prejudice)
of
the
harassment
originally lodged against her on December 2, 2009.
28.)
charge(s)
(See id. at
Further, although the Complaint asserts in conclusory terms
that Plaintiff’s “injuries from the unconstitutional statutes are
capable of repetition yet evading review” (id.), it does not set
forth factual matter showing that Plaintiff has faced additional
harassment arrests or that the CPD has engaged in a pattern of
enforcement of the harassment statute that interferes with her
otherwise lawful activities (see id. at 6-32).
Nor has Plaintiff
alleged an intent to engage in any conduct that she reasonably
might fear would result in harassment charges.
(See id.)
Under these circumstances, Plaintiff lacks standing to obtain
(and this Court thus lacks jurisdiction to issue) a declaratory
judgment invalidating or an injunction proscribing enforcement of
South
Carolina’s
harassment
statute.
See,
e.g.,
O’Shea
v.
Littleton, 414 U.S. 488, 497-98 (1974) (“Here we can only speculate
whether [the plaintiffs] will be arrested . . . for violating a
38
municipal ordinance or a state statute, particularly in the absence
of any allegations that unconstitutional criminal statutes are
being employed to deter constitutionally protected conduct.
Even
[where a plaintiff has] attacked a specific statute under which he
had previously been prosecuted, the threat of a new prosecution
[must be] sufficiently imminent to satisfy the jurisdictional
requirements of the federal courts. [The plaintiffs] here have not
pointed to any imminent prosecutions contemplated against any of
their number . . . .
[T]he threat of injury . . . is simply too
remote to satisfy the case-or-controversy requirement and permit
adjudication by a federal court.”); Srivastava v. Newman, 12 F.
App’x 369, 372 (7th Cir. 2001) (“[The plaintiff’s] request for an
injunction [striking down a state stalking statute] arises from a
criminal case that has long since terminated.
She alleged no
threatened or pending criminal prosecution and therefore lacks
standing to seek injunctive relief.”); Mendy v. City of Fremont,
No. C-13-4180MMC, 2014 WL 574599, at *5 (N.D. Cal. Feb. 12, 2014)
(unpublished) (“Here, as noted, [the] plaintiffs allege certain of
the defendants arrested [one of them] without probable cause . . .
and caused false charges to be filed against [them] . . . .
Those
particular alleged constitutional violations had ceased prior to
the filing of the instant action and, consequently, the harm [the]
plaintiffs
allege
they
incurred
as
a
result
of
the
alleged
violations does not provide them with standing to seek equitable
39
relief.
As [the] plaintiffs do not allege facts to support a
finding that they otherwise face an actual and imminent threat from
[the] defendants, [the] plaintiffs fail to allege facts to support
a finding that they have standing to seek equitable relief.”
(internal citations and quotation marks omitted)).
All of these clear legal deficiencies mandate dismissal under
Section 1915(e)(2)(B) of Plaintiff’s instant claim(s) for false
arrest/imprisonment and invalid search(es) on December 2, 2009.
ii.
Factual Frivolousness
The section of the Complaint addressing the instant claim(s)
also qualifies as factually frivolous.
As described in Part
V.A.ii., the Complaint generally relies on the fantastic theory
that the CPD (which allegedly controls the government of the City
of Columbia) and the RCSD, as well as numerous South Carolina
judges,
court
staff,
and
attorneys,
have
joined
forces
with
Plaintiff’s landlord to violate Plaintiff’s federal constitutional
rights (and, indeed, to try to kill her).
Regarding the instant
claim(s), the Complaint alleges that, “[o]n 2 December 2009, the
[CPD] falsely arrested [Plaintiff] and charged her with two counts
of having ‘harassed’ [her landlord] and one [of her landlord’s
other] tenant[s], ‘in the first degree’ by having:
landlord]
in
civil
court,
(b)
criticized
[her
(a) sued [her
landlord’s]
management of the rental buildings, (c) inquired of the [allegedly
harassed tenant] if her rent was lower than [Plaintiff’s] for an
40
identical apartment, (d) questioned in the apartments’ parking lot
a suspicious prowler who claimed to be [said tenant’s] cousin, and
(e) photographed one of [said tenant’s] ‘guests’ engaged in illegal
acts in same parking lot.”
(Docket Entry 2 at 27.)
Elsewhere, however, the Complaint concedes that the harassment
charges
in
question
actually
encompassed
alleged
conduct
Plaintiff far beyond what her foregoing summary suggested.
by
(See
id. at 13 (noting, in reference to “harassment charges on which
[Plaintiff] was arrested on 2 December 2009 . . . [, that,] to the
extent
she
took
photographs,
made
recordings,
and
asked
her
neighbors not to smoke at her all in public, she was exercising her
First Amendment right to speech and her Section 1981 right to
‘obtain evidence’ for her civil lawsuit,” that the prosecutor
attempted to prove that the allegedly harassed tenant’s “family and
friends visited her regularly until crazed [Plaintiff] started
taking their pictures for no reason and calling them prostitutes,”
and
that
(at
trial)
Plaintiff
had
“show[n]
the
physical
impossibility of her having ‘blocked [said tenant] in from going to
work’ in summer 2009, followed [her landlord] on 26 March 2009,
[or] intruded on either false accuser’s ‘day-to-day routine’” (bold
and italics in original)); see also id. at 20 (stating that, as a
result of conflict with her landlord and the allegedly harassed
tenant, Plaintiff felt “a necessity of documenting everything with
photos and tapes”), 56 (describing Plaintiff’s conversation with an
41
RCSD
deputy
who
“insisted
that
[Plaintiff]
should
have
been
convicted of harassment because she had called [the allegedly
harassed tenant] ‘a whore’ [whereupon Plaintiff responded] . . .
that the First Amendment allows anyone to call anyone else ‘a
whore’ subject to civil damages for defamation”).)
To put it succinctly, the Complaint indicates that Plaintiff’s
arrest on December 2, 2009, stemmed, inter alia, from allegations
(admitted,
at
least
to
some
extent,
by
Plaintiff)
that
she
repeatedly photographed, recorded, and directed vile epithets at
her landlord, a fellow tenant, and their family/friends.
Such
conduct would appear to support a charge of harassment in the first
degree under South Carolina law.
See S.C. Code § 16-3-1700(A)
(“‘Harassment in the first degree’ means a pattern of intentional,
substantial, and unreasonable intrusion into the private life of a
targeted person that serves no legitimate purpose and causes the
person and would cause a reasonable person in his position to
suffer mental or emotional distress.”).16
Further, although the
Complaint goes to great lengths to try to show that Plaintiff’s
16
The statute cites as non-exclusive examples: “(1) following
the targeted person as he moves from location to location; (2)
visual or physical contact that is initiated, maintained, or
repeated after a person has been provided oral or written notice
that the contact is unwanted or after the victim has filed an
incident report with a law enforcement agency; (3) surveillance of
or the maintenance of a presence near the targeted person’s: (a)
residence; (b) place of work; (c) school; or (d) another place
regularly occupied or visited by the targeted person; and (4)
vandalism and property damage.” S.C. Code § 16-3-1700(A).
42
landlord,
the
allegedly
harassed
tenant,
and
witnesses
who
supported them lack credibility (see Docket Entry 2 at 13-18),
elsewhere
it
more
effectively
(if
unintentionally)
shows
the
frivolousness of Plaintiff’s instant claim(s).
To begin with, the Complaint acknowledges Plaintiff’s prior
embroilment in a series of disputes with other landlords.
(See,
e.g., id. at 10-11 (“Between 1991 and 2002, [Plaintiff] rented
Hampton Greene Apt. 2002 which was bought by United Dominion Realty
(UDR) in 1995. That caused landlord-tenant civil suits between UDR
and [Plaintiff].
In 1999, UDR agents falsely accused [Plaintiff]
of disorderly conduct and had her prosecuted . . ., [but she]
exonerated herself pro se. In July 2001 UDR, acting through [a law
firm],
settled
all
then-standing
claims
between
UDR
and
[Plaintiff].” (internal paragraph number omitted)), 12-13 (“In July
2002, [Plaintiff]
and
her mother
rented the
436
Byron
Road,
Columbia, 29209, house form [sic] Sharon Koon . . . .
Koon
concocted a scheme to default on her mortgage . . . [which]
necessitated evicting [Plaintiff].
So, in 2005 Koon tried to
unilaterally raise the rent to 150% above fair market value.
[Plaintiff] refused.
her . . . .”).)
conflict
with
Koon then had [Plaintiff’s] neighbors stalk
The Complaint does not describe how Plaintiff’s
the
second
of
those
previous
landlords
(Koon)
resolved, except to state that, “[i]n August 2008, [Plaintiff]
learned she must vacate 436 Byron Road” (id. at 13) and that “Koon
43
forcefully, brutally and unexpectedly set [Plaintiff] out on 30
September 2008” (id.).
A decision by the South Carolina Supreme
Court (discussed in Section IV), however, fills in the blanks (and
confirms that Plaintiff should have expected her forcible removal):
1) in 2006, Koon “filed an application for ejectment based on
[Plaintiff’s and her mother’s] failure to pay rent when due,
expiration of the term of the lease, and [their] violation of the
terms of the lease,” Koon, 666 S.E.2d at 232, 379 S.C. at 153
(internal parenthetical numbers omitted);
2)
“the
magistrate
granted
[Koon’s]
motion
for
summary
judgment and ordered the eviction of [Plaintiff and her mother],”
id. at 232, 379 S.C. at 154;
3) “the circuit court affirmed the magistrate’s grant of
summary judgment,” id. at 233, 379 S.C. at 154; and
4) in August 2008, South Carolina’s Supreme Court “affirm[ed]
the grant of summary judgment,” id. at 235, 379 S.C. at 158.17
On the heels of that eviction, the Complaint alleges that
“[Plaintiff] rented 304 Byron Apt. 3” (Docket Entry 2 at 13), one
of eight units which “Dinah Steele owns [in] two quadriplexes on
300 and 304 Byron Road, Columbia” (id. at 12).
17
Predictably, given
Moreover, in reaching its decision, the South Carolina
Supreme Court observed that Plaintiff had construed the tenancy
agreement in a manner that produced an “absurd result,” Koon, 666
S.E.2d at 233, 379 S.C. at 155, and that, in the course of the
conflict, Plaintiff sought “to take advantage of [Koon’s]
generosity,” id. at 234, 379 S.C. at 156.
44
Plaintiff’s
above-noted
prior
tenancy
record,
she
promptly
instigated conflict, including (as shown by her own Complaint):
1) attempting to insinuate herself into the affairs of Teresa
Ingram (the tenant-victim in the harassment charges lodged against
Plaintiff on December 2, 2009) (see id. at 17 (“On 15 February
2009, [] Ingram called police to report [a domestic dispute]
. . . .
[Plaintiff] asked [the responding officer] if there is
risk [to Plaintiff and later] . . . told Ingram she should
apologize to [her] neighbor ‘if she loves God’ and asked Ingram to
recite the Lord’s prayer as an antidote to anger.”));
2) purchasing a small strip of land adjacent to Steele’s
apartment buildings and commencing construction of a single-family
home (without even a courtesy warning to Steele) (see id. at 17-18
(“In November 2008, [Plaintiff] learned that the northern most part
of
the
vacant
land
immediately
south
of
the
304
Byron
Road
quadriplex was really the ‘pole’ end of a ‘flagpole’ property
addressed 311 Veteran’s Road . . . .
[The owner] agreed to sell
[Plaintiff] the ‘pole’ end if she could get permits to subdivide it
from the main property and build on it.
That approval [which
involved securing an exception to applicable zoning restrictions]
arrived towards the end of February 2009 . . . [and, on] 2 March
2009, [Plaintiff] closed on the land . . . .”); and
3) responding to Steele’s objection to the construction plan
(upon belatedly learning of it) by “call[ing] the police to give
45
Steele notice not to trespass on [Plaintiff’s] land” (id. at 1819),
“call[ing]
[Steele’s
attorney
to]
warn[]
him
against
a
frivolous appeal of [Plaintiff’s] special exception [from zoning
restrictions]”
discrimination
(id.
in
at
rental
19),
and
“su[ing]
terms
and
conditions
[Steele]
and
for
tortious
interference with [Plaintiff’s] plans to build on land adjacent to
Steele’s two rental quadriplexes” (id. at 27).
The Complaint further demonstrates that, as such conflict
played out, Plaintiff became increasingly irrational; for example:
1) Plaintiff concluded that Steele “needed to run [Plaintiff]
off because . . . sewer lines from 300 and 304 Byron Road had been
illegally and clandestinely run under and across the 324 Byron Road
land to camouflage them from view and thus avoid paying initial tap
fees and later monthly sewer bills” (id. at 18);
2) “[Plaintiff] told [Steele’s attorney] that [Plaintiff]
would consider [any] further efforts to spray her apartment with
chemicals . . . ‘an attempted murder’” (id. at 21);
3) when Steele refused to pay $10,000 either to re-route her
sewer lines
or
to
buy an
easement
from
Plaintiff,
Plaintiff
inferred that Steele had “decided to get rid of [Plaintiff] and her
mother . . . [by] caus[ing] [Plaintiff’s] mother’s death and
run[ning] [Plaintiff] off from Columbia” (id. at 22);
46
4) Plaintiff theorized that Ingram “offered her services
against [Plaintiff] to Steele [and Steele’s husband/boyfriend] for
pay in the form of free rent” (id. at 23); and
5)
Plaintiff
“intensified
his
convinced
herself
that
another
intentional
smoking
towards
tenant
[Plaintiff’s]
apartment to aggravate her asthma” (id.).
According to the Complaint, on September 11, 2009, the dispute
between Plaintiff and Steele escalated to the point of physical
contact when, during an encounter orchestrated by Plaintiff for the
purported purpose of personally serving Steele with a letter,
Steele “stretched her hand to push [Plaintiff, who] quickly put the
letter on Steele [sic] outstretched forearm, said ‘You’ve got it’
and turned away . . . .”
(Id.)
Steele apparently then called the
CPD and, when officers responded, Plaintiff refused to come out of
her apartment to talk with them, instead demanding the presence of
a shift supervisor (whom Plaintiff subsequently directed to speak
to her lawyer on the telephone).
(Id. at 24.)
The Complaint thereafter implausibly deduces that Steele’s
husband/boyfriend somehow “recruited [the] City’s Attorney’s office
. . . and [the] CPD in his schemes [against Plaintiff, ultimately
resulting in her arrest for harassment].”
(Id.; see also id. at 7-
8 (“CPD-seen videos of CPD’s 2 December 2009 arrest of [Plaintiff]
and ransacking of her car and apartment show [a] CPD Investigator
[] displaying the warrants to Larry Wayne Mason [Steele’s husband/
47
boyfriend] and boasting: ‘I singed [sic] them for you, Wayne.’”
(bold and italics in original)), 25 (“It is also clear that the
hope and the plan was for [Plaintiff] to resist arrest and be
killed in the process with many CPD officers present to testify
that her shooting was justified.”), 53 (“[A prosecutor] and others
first schemed to keep [Plaintiff] permanently incarcerated pending
a trial [said prosecutor] initially intended to never mount.
But
when . . . those schemes failed . . ., [said prosecutor], [a
circuit court judge] and others decided to railroad [Plaintiff]
into a false conviction by rushing her to trial . . . .”).)18
After carefully considering all of the foregoing matters and
employing common sense, see Nasim, 64 F.3d at 954, the undersigned
Magistrate Judge concludes that Plaintiff’s claim(s) of false
arrest/imprisonment and invalid search(es) on December 2, 2009,
rely(ies) on “fanciful factual allegation[s],” Neitzke, 490 U.S. at
325.
The Court therefore should dismiss Plaintiff’s instant
claim(s) as frivolous under Section 1915(e)(2)(B).
18
The Complaint alleges that the attempted railroading in
circuit court failed as, “[o]n 22-26 February 2010, [Plaintiff]
ably defended herself against the false harassment charges . . .
and the jury deadlocked.” (Docket Entry 2 at 26.) According to
the Complaint, a prosecutor thereafter “remanded the charges as
reduced to second-degree harassment to Columbia Municipal Court”
(id.; see also id. at 27 (“Harassment in the first degree exceeds
[the municipal court’s] petty-offense jurisdiction . . . .”)) and,
“on 13 August 2012[,] [Plaintiff] pro se ably argued for, and was
granted, their final dismissal WITH PREJUDICE” (id. at 28
(capitalization as in original) (bold omitted)).
48
C. Unlawful Use of a Telephone Arrest on December 12, 2009,
and Related Attempts to Prosecute in July 2012 and March 2013
The Complaint’s second “claim” addresses “the false arrest of
Plaintiff on Saturday, 12 December 2009, on [a] false charge of
‘unlawful use of telephone’ which was resolved in her favor on 6
October 2010, . . . and Defendants’ continued efforts to bring that
false charge to trial until July 2012 and March 2013[.]”
(Docket
Entry 2 at 4 (internal bold omitted) (emphasis added); see also id.
at
32-50
(setting
out
claim
under heading “The
Saturday,
12
December 2009 False Arrest on False Charge of Unlawful Use of
Telephone”).)
Section III documents that, in Assa’ad-Faltas, 2014
U.S. Dist. LEXIS 87526, the United States District Court for the
District of South Carolina rejected the same claim(s) by Plaintiff.
This Court now should dismiss the instant claim(s) under Section
1915(e)(2)(B) as frivolous and for failure to state a claim.
As an initial matter, Plaintiff’s instant Section 1983/Fourth
Amendment false arrest claim19 qualifies as legally frivolous due
to its tardiness.
See Nasim, 64 F.3d at 955-56.
Specifically,
even employing the alleged date of final resolution in Plaintiff’s
favor of the unlawful use of telephone charge (October 6, 2010 (see
19
“[F]alse arrest . . . claims . . . are essentially claims
alleging a seizure of the person in violation of the Fourth
Amendment,” Rogers, 249 F.3d at 294, and “Section 1983 . . .
creates a cause of action against any person who, acting under
color of state law, abridges a right arising under the
Constitution,” Cooper, 735 F.3d at 158. Plaintiff expressly seeks
to proceed on such grounds. (See Docket Entry 2 at 4.)
49
Docket Entry 2 at 4)) as the accrual date,20 her assertion of the
instant claim in her Complaint (filed August 13, 2014 (see id. at
1)) came well outside the apposite three-year limitations period,
see Heyward, 1998 WL 841494, at *3; Brooks, 85 F.3d at 181.21
In addition, the Complaint fails to state a claim for false
arrest on December 12, 2009. According to the Complaint, following
Plaintiff’s arrest on December 2, 2009 (for harassing her landlord
and a fellow tenant), the municipal judge before whom Plaintiff
20
Pursuant to the analysis in Wallace, 549 U.S. at 388-94, the
limitations period actually began to run much earlier.
21
As noted above, Plaintiff brought an identical false arrest
claim in the District of South Carolina, which that court dismissed
without prejudice (but also without reference to any tolling).
Assa’ad-Faltas, 2014 U.S. Dist. LEXIS 87526, at *3.
Plaintiff
asserts (without any supporting citation) that her time to bring
the instant claim was “tolled by [that prior] dismissal wihtout
[sic] prejudice.” (Docket Entry 2 at 5 (italics in original).)
Persuasive authority counsels otherwise. See Williams v. Cathy,
No. 3:08CV65, 2008 WL 2277544, at *3 (W.D.N.C. June 2, 2008)
(unpublished) (explaining that state tolling rules apply to Section
1983 claims and that, under North Carolina law, dismissal without
prejudice does not toll limitations period unless order provided
for tolling); see also Gallipeau v. Ham, No. C/A No. 0:13-505-TMC,
2014 WL 2613178, at *4 (D.S.C. June 10, 2014) (unpublished) (“‘It
is well settled in South Carolina that when an action is dismissed
without prejudice, the statute of limitations will bar a subsequent
suit if the statute runs in the interim.’ Rink v. Richland Mem’l
Hosp., 310 S.C. 193, 422 S.E.2d 747, 749 (S.C. 1992) (citing Davis
v. Lunceford, 287 S.C. 242, 335 S.E.2d 798 (S.C. 1985)). ‘If a
case is dismissed without prejudice, the statute of limitations is
deemed to have continued running from whenever the cause of action
accrued, without interruption by the filing of that case.’
McMorris v. Sherfield, [No. 6:10CV670JMC-KFM,] 2010 WL 5488905, at
*3 (D.S.C. Aug. 30, 2010) [(unpublished)] (citing Elmore v.
Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000)). ‘In other words,
for statute of limitations purposes, a suit dismissed without
prejudice is treated as if it had never been filed.’ Id.”).
50
appeared “ordered [her] to not return to her Byron [Road] apartment
except with police escort and to not live there.”
at 40.)
(Docket Entry 2
Plaintiff apparently made CPD-supervised visits to her
apartment on December 4, 8, and 9, 2009, and called CPD dispatchers
at least twice on December 10 and 11, 2009, seeking to enter her
apartment yet again. (See id.) Purported transcripts of telephone
calls and CPD radio communications from Saturday, December 12,
2009, incorporated into the Complaint, further reflect that:
1) Plaintiff traveled to a CPD office and, upon finding it
closed, called a CPD dispatcher to request that an officer come
meet Plaintiff and accompany her to her apartment (id. at 42-43);
2) despite the dispatcher having declined to give Plaintiff a
definite time when an officer might arrive, after the first call
ended between 12:23 and 12:28 p.m., Plaintiff called back to CPD
dispatchers at least five times before 1:39 p.m. (apparently in an
increasingly agitated state), complaining (repeatedly) about having
to wait for an officer, arguing (repeatedly) about the content of
her prior discussions with dispatchers, seeking to speak with a
dispatch supervisor, and demanding to know the exact whereabouts of
the patrol sergeant on duty in the area, as well as his mobile
number, so she either could track him down in person or could call
him directly to make arrangements that suited her (id. at 43-47);
3) at 1:39 p.m., CPD Sergeant Auld arrived at Plaintiff’s
location and “arrested [her] for harassing phone calls . . . [t]o
51
the dispatchers” (id. at 47-48; see also id. at 48 (“Ma’am, you
can’t call up and yell at the dispatchers . . . .
that. . . .
You cannot do
[The dispatcher] told you that we would be as [sic]
over here as quick as we could.
yelling at the dispatchers.
And you kept calling back and
You can’t do that, ma’am.”).22
22
The Complaint’s caption identifies Sergeant Auld as a
Defendant. (Docket Entry 2 at 1.) Sergeant Auld’s late father and
the undersigned Magistrate Judge’s late father were brothers.
Accordingly, Sergeant Auld’s late father was the undersigned
Magistrate Judge’s uncle, Black’s Law Dictionary 1524 (6th ed.
1990) (“Uncle.
The brother of one’s father or mother.”), and
Sergeant Auld is the undersigned Magistrate Judge’s first cousin,
id. at 362 (defining “[f]irst cousins” as “the children of one’s
uncle or aunt”). That fact, however, does not require recusal.
See 28 U.S.C. § 455(b)(5) (mandating disqualification of a federal
judicial official when “a person within the third degree of
relationship to [the federal judicial official] . . . [i]s a party
to the proceeding”); see also 28 U.S.C. § 455(d)(2) (providing that
“the degree of relationship is calculated according to the civil
law system”); United States v. Fazio, 487 F.3d 646, 653 (8th Cir.
2007) (“A first cousin is considered the fourth degree of
relationship.”); Njie v. Lubbock Cnty., Tex., 999 F. Supp. 858, 862
(N.D. Tex. 1998) (“According to the civil law system . . . [‘][t]he
fourth degree of relationship includes first cousins . . . .[’]”
(quoting 23 Am. Jur. 2d Descent & Distribution § 55 (1983))).
Moreover, because no close personal relationship exists between
Sergeant Auld and the undersigned Magistrate Judge (e.g., the
undersigned Magistrate Judge has not spoken to Sergeant Auld since
his father’s funeral in January 2006), no basis for recusal exists
under the general provision that demands disqualification where a
federal judicial official’s “impartiality might reasonably be
questioned,” 28 U.S.C. § 455(a). See Liteky v. United States, 510
U.S. 540, 553 (1994) (“It would obviously be wrong, for example, to
hold that ‘impartiality could reasonably be questioned’ simply
because one of the parties is in the fourth degree of relationship
to the judge. Section 455(b)(5), which addresses the matter of
relationship specifically, ends the disability at the third degree
of relationship, and that should obviously govern for purposes of
§ 455(a) as well.”); In re International Bus. Machs. Corp., 618
F.2d 923, 929 (2d Cir. 1980) (“[I]f a judge’s first cousin is a
party to a case and no disqualification arises under section
(continued...)
52
As a recommendation (later adopted) in the District of South
Carolina observed in dispatching an identical claim:
“There is no cause of action for ‘false arrest’ under
section 1983 unless the arresting officer lacked probable
cause.” Street v. Surdyka, 492 F.2d 368, 372-73 (4th
Cir. 1974).
. . . Plaintiff’s complaint contains . . . telephone
transcripts demonstrating numerous calls she made to [CPD
dispatchers] prior to her arrest on December 12, 2009.
Because Plaintiff’s own pleadings demonstrate she
repeatedly called the CPD dispatcher[s] and that Sgt.
Auld had been informed that Plaintiff had been harassing
and yelling at the dispatcher[s], Plaintiff’s complaint
fails to demonstrate a lack of probable cause for her
arrest or an unreasonable seizure under the Fourth
Amendment. See Figg [v. Schroeder], 312 F.3d [625,] 636
[(4th Cir. 2002)] (“An officer has probable cause for
arrest if the facts known to him at the time would
warrant the belief of a prudent person that the arrestee
had committed or was committing a crime.”) (citing Beck
v. Ohio, 379 U.S. 89, 91 (1964)).
Thus, Plaintiff’s
false arrest claim is subject to summary dismissal.
Assa’ad-Faltas, 2013 U.S. Dist. LEXIS 188115, at *11-12 (some
internal citations omitted); see also id. at *11 n.3 (“South
Carolina law makes it unlawful to telephone or electronically
contact another repeatedly, whether or not conversation ensues, for
the purpose of annoying or harassing another person or his family.”
22
(...continued)
455(b)(5) since he is not within the third degree of kinship,
reasonable men might well question his impartiality where a close
personal relationship exists between the two.” (emphasis added)).
53
(citing S.C. Code § 16-17-430(A)(3))).23
This Court should reach
the same conclusion as to Plaintiff’s instant false arrest claim.24
Similarly, again as the recommendation in the parallel case in
the District of South Carolina noted:
Plaintiff claims that the charge for unlawful use of a
telephone “was resolved in her favor” on October 6, 2010.
However, [the] [d]efendants allegedly “continued efforts
to bring that false charge to trial until July 2012 and
March 2013.” “[I]t is not entirely clear whether the
Constitution recognizes a separate constitutional right
to be free from malicious prosecution.” Snider v. Seung
Lee, 584 F.3d 193, 199 (4th Cir. 2009). However, to the
extent such right exists, a plaintiff must demonstrate
seizure “‘pursuant to legal process that was not
supported by probable cause and that the criminal
proceedings have terminated in [her] favor.’” Durham v.
Horner, 690 F.3d 183, 188 (4th Cir. 2012) (quoting
Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005)).
23
The Complaint mistakenly cites S.C. Code § 16-17-340 (which
does not exist) as the statute criminalizing unlawful use of a
telephone. (See Docket Entry 2 at 38, 50.)
24
To the extent the Complaint predicates the instant false
arrest claim on the fact that Sergeant Auld arrested Plaintiff
without a warrant for a misdemeanor he did not witness (see Docket
Entry 2 at 33), it fails as a matter of law, see Street, 492 F.2d
at 372 (“We do not think the [F]ourth [A]mendment should now be
interpreted to prohibit warrantless arrests for misdemeanors
committed outside an officer’s presence. The difference between
felonies and misdemeanors is no longer as significant as it was at
common law.”); see also Devenpeck v. Alford, 543 U.S. 146, 152
(2004) (“[A] warrantless arrest by a law officer is reasonable
under the Fourth Amendment where there is probable cause to believe
that a criminal offense has been or is being committed.” (emphasis
added)).
Nor, given the Complaint’s concession that, “[o]n 6
October 2010, the ‘unlawful use of telephone’ charge was resolved
in [Plaintiff’s] favor” (Docket Entry 2 at 50) and its lack of
factual matter showing any imminent risk of arrest (see id. at 3250), does she have standing for her effort to obtain a judgment
declaring unlawful (or enjoining enforcement of) South Carolina’s
telephone misuse law (see id.). See O’Shea, 414 U.S. at 497-98;
Srivastava, 12 F. App’x at 372; Mendy, 2014 WL 574599, at *5.
54
As discussed above, Plaintiff fails to demonstrate an
unlawful arrest by Sgt. Auld [i.e., the absence of
probable cause]. . . .
Thus, Plaintiff’s malicious
prosecution claims are also subject to summary dismissal.
Assa’ad-Faltas, 2013 U.S. Dist. LEXIS 188115, at *12-13 (internal
brackets and some internal citations and quotation marks omitted).
That
analysis
applies
equally
here
dismissal under Section 1915(e)(2)(B).25
and
should
lead
to
Further, the section of
the Complaint devoted to the unlawful use of a telephone charge
does not allege any facts showing any “continued efforts to bring
[Plaintiff] to trial until July 2012 and March 2013” (Docket Entry
2 at 4).
(See id. at 32-50.)26
such claim.
That circumstance also defeats any
Iqbal, 556 U.S. at 678 (ruling that, to state a claim,
a complaint must “contain sufficient factual matter”).
25
Additionally, although the Complaint alleges that the “false
charges of unlawful use of telephone . . . were nol prossed WITHOUT
leave to reopen on 6 October 2010” (Docket Entry 2 at 25
(capitalization as in original) (internal quotation marks
omitted)), “[c]ourts have held that a simple, unexplained nolle
prosequi . . . does not satisfy the favorable termination
requirement,” Hewitt v. Garrison, C/A No. 6:12-3403-TMC, 2013 WL
6654237, at *2 (D.S.C. Dec. 17, 2013) (unpublished); accord
DiFronzo v. Chiovero, 406 F. App’x 605, 609 (3d Cir. 2011).
26
Moreover, the Complaint elsewhere indicates that the
“continued efforts to bring [Plaintiff] to trial” (Docket Entry 2
at 4) actually consisted only of the municipal court sending
notices by “mistake” (id. at 25).
Such allegations cannot
establish a constitutional violation because “the Constitution does
not guarantee due care on the part of state officials,” County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see also Brack v.
Jones, No. 5:12CT3088FL, 2014 WL 773492, at *3 (E.D.N.C. Feb. 25,
2014) (unpublished) (“[A]t most, [the] plaintiff’s allegations
suggest negligence, which is not actionable pursuant to § 1983.”).
55
Finally, the instant claim(s) feature(s) “allegations that are
fanciful, fantastic, and delusional.”
Denton, 504 U.S. at 32-33
(internal citations and quotation marks omitted).
For example:
1) “[t]he specific false arrest of [Plaintiff] on 12 December
2009 on [a] false charge of ‘unlawful use of a telephone’ was
contrived by all individualy-suedl [sic] [D]efendants to revoke
[Plaintiff’s]
bond
[related
to
her
arrest
for
harassment
on
December 2, 2009] and return her to incarceration to prevent her
effective pro se research leading to self-exoneration from the two
false harassment charges and to leave her apartment open to looting
by Defendants” (Docket Entry 2 at 32-33);
2) “[a]fter [Plaintiff] . . . was allowed to return briefly to
her apartment in the late afternoon of 4 December 2009, after her
release from detention, she found . . . her passports missing [and]
. . . later saw evidence that [her landlord’s attorney] had taken
them” (id. at 40);
3) “[a]fter [Plaintiff] was released again on Sunday, 13
December 2009, and was allowed to return to her Byron [Road]
apartment in the evening of Monday, 14 December 2009, with the
escort of [a] CPD [o]fficer [], [Plaintiff] found that her two
passports . . . had been replaced in her apartment evidently by
whomever had initially taken them” (id. at 49); and
4) “[the attorneys for Plaintiff’s landlord] had conspired to
effect [Plaintiff’s] 12 December 2009 arrest to conceal their theft
56
of her passports from her Byron [Road] Apartment to which [one of
the attorneys] had been admitted illeally [sic] by CPD after
[Plaintiff’s] 2 December 2009 false arrest” (id. at 49-50).
Accordingly,
the
Court
also
should
dismiss
the
instant
claim(s) for false arrest on December 12, 2009, and related efforts
to prosecute in July 2012 and March 2013, as factually frivolous.
See Nasim, 64 F.3d at 954 (ruling that Section 1915(e)(2)(B)
permits courts “to apply common sense [and] reject the fantastic”).
D. Trespassing Arrest on March 23, 2011, and
Continued Denial of Access to Public Buildings
The third “claim” in the Complaint relates to “Plaintiff’s 23
March 2011 false arrest by RCSD on [a] false charge of ‘trespass’
[and] . . . the continued unjustified denial of [her] access to the
[RCJC] and to the CMC building . . . .”
(Docket Entry 2 at 4
(internal bold omitted) (emphasis added); see also id. at 50-62
(setting out claim under heading “The False 23 March 2011 Arrest,
Imprisonment, and Deliberate Indifference to Medical Needs”).)27
As shown in Section III, in Assa’ad-Faltas, 2013 WL 5273813, the
United States District Court for the District of South Carolina
27
Although the title of the section of Plaintiff’s Complaint
addressing her third “claim” makes reference to “Deliberate
Indifference to Medical Needs” (Docket Entry 2 at 50), the
introduction to the Complaint does not include any such claim in
its list of the claims presented for adjudication by this Court
(id. at 3-4) and, further, that introduction explicitly states that
any claim not appearing on that list is “expressly reserved for
other complaints” (id. at 4). Accordingly, the ensuing discussion
will not address any possible claim for deliberate indifference.
57
dismissed the same false arrest and denial of access claim(s) and,
in Assa’ad-Faltas, No. 3:12CV2991, Docket Entry 62, that court
dismissed an identical false arrest claim, after “find[ing] it
apparent and clear from the face of the complaint that [P]laintiff
fail[ed] to state a claim on which relief may be granted, and, in
addition, that [her] allegations . . . [we]re frivolous.”
This
Court should find similarly and should dismiss the instant claim(s)
under Section 1915(e)(2)(B).
To
begin,
Plaintiff’s
Complaint
states
that
the
“false
trespass charge was dismissed on or about 20 June 2011” (Docket
Entry 2 at 58); even granting Plaintiff the benefit of accrual on
that date,28 she missed the three-year limitations deadline, see
Heyward, 1998 WL 841494, at *3; Brooks, 85 F.3d at 181, by waiting
to assert the instant false arrest claim (which arises under
Section 1983, see Cooper, 735 F.3d at 158; Rogers, 249 F.3d at
294)29 until August 13, 2014 (see Docket Entry 2 at 1).
As a
result, the Court should dismiss Plaintiff’s instant false arrest
claim for legal frivolousness.
See Nasim, 64 F.3d at 955-56.30
28
The Supreme Court has made clear that the limitations period
for any such false arrest claim, in fact, commenced before the date
of dismissal. Wallace, 549 U.S. at 388-94.
29
The Complaint explicitly identifies the Constitution and
Section 1983 as bases for its claims. (See Docket Entry 2 at 4.)
30
The discussion above notes that, on two earlier occasions,
Plaintiff presented this same false arrest claim in the District of
South Carolina, resulting (both times) in dismissals without
(continued...)
58
Further, the Complaint fails to state a claim for false arrest
on March 23, 2011.
According to the Complaint:
1) on April 1, 2010, a circuit court judge in Richland County
issued an order “limiting [Plaintiff’s] access . . . to [the RCJC]
to 2:00 - 4:00 pm on business days . . . and to her scheduled
trials and hearings, and threatening ‘contempt of court punishable
by a fine or incarceration’ for violations” (Docket Entry 2 at 55);
2)
on
January
18,
2011,
RCSD
deputies gave
Plaintiff
a
“notice” for the stated purpose of “emphasiz[ing] the 1 April 2010
‘Order’” (id. at 56);
3) “[o]n 23 March 2011, [Plaintiff] went to [the RCJC] . . .
arriv[ing] close to the 4:00 pm limit” (id. at 57);
4) Plaintiff “soon realized [that] phone calls were being made
to arrest her . . . so she left” (id.);
5) before Plaintiff could get away, an RCSD deputy “arrested
[her] [and] took her to the basement of the [RCJC] . . . [where
she] invited them to report to [the judge who issued the April 1,
2010 Order] and let him decide for himself whether he want[ed] to
charge her for contempt” (id.);
30
(...continued)
prejudice that made no reference to tolling. Assa’ad-Faltas, 2013
WL 5273813, at *3; Assa’ad-Faltas, No. 3:12CV2991, Docket Entry 62
at 5. According to the Complaint, the statute of limitations for
her instant false arrest claim was “tolled by [those prior]
dismissal[s] wihtout [sic] prejudice.”
(Docket Entry 2 at 5
(italics in original).) That position lacks merit. See Gallipeau,
2014 WL 2613178, at *4; Williams, 2008 WL 2277544, at *3.
59
6) RCSD deputies transported Plaintiff to a detention center
“[a]nd only after [she] was booked in [the detention center] did
[D]efendants get a warrant for ‘trespass’ from the [detention
center’s] resident magistrate” (id. (italics in original)); and
7)
“[w]hen
that
case
came
for
trial,
[the
presiding
magistrate] noted that there is no [South Carolina] crime of
trespass on public buildings during business hours” (id. at 58).
“[A] warrantless arrest by a law officer is reasonable under
the Fourth Amendment where there is probable cause to believe that
a criminal offense has been or is being committed.”
Devenpeck v.
Alford, 543 U.S. 146, 152 (2004) (emphasis added).”); Street, 492
F.2d at 371 (“There is no [Fourth Amendment] prohibition against
arrests for investigations where probable cause exists.”).
Under
South Carolina law, “[c]ontempt of [c]ourt is a specific criminal
offense[.]”
South Carolina v. Weinberg, 92 S.E.2d 842, 845, 229
S.C. 286, 292 (1956), rev’d in part on other grounds, South
Carolina v. Kennerly, 524 S.E.2d 837, 839, 337 S.C. 617, 621
(1999); see also State v. Bevilacqua, 447 S.E.2d 213, 217, 316 S.C.
122, 129 (S.C. Ct. App. 1994) (“It is well settled that contempt
results from willful disobedience of a court order[.]”); S.C. Code
§ 14-5-320 (“The circuit court may punish by fine or imprisonment,
at the discretion of the court, all contempts of authority in any
cause or hearing before the same.”).
The factual allegations of
the Complaint establish that, at the time of Plaintiff’s arrest on
60
March 23, 2011, the arresting RCSD deputies possessed probable
cause31 to believe that she had committed the criminal offense of
contempt by
Complaint
knowingly
states
that
violating a
Plaintiff
court
order.
acknowledged
arresting deputies at the time of her arrest.
as
Indeed,
much
to
the
the
As a result, her
instant false arrest claim fails as a matter of law.32
The Complaint also lacks factual matter showing any “continued
unjustified denial of Plaintiff’s access to the [RCJC] and to the
CMC
building”
(Docket
Entry
2
at
4).
(See
id.
Accordingly, any claim in that regard cannot proceed.
at
50-62.)
See Iqbal,
31
“The substance of all the definitions of probable cause is
a reasonable ground for belief of guilt. And this means less than
evidence which would justify condemnation or conviction, . . .
[but] more than bare suspicion: Probable cause exists where the
facts and circumstances within [the officers’] knowledge and of
which they had reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.”
Brinegar v.
United States, 338 U.S. 160, 175–76 (1949) (internal citations,
parentheses, and quotation marks omitted); see also Los Angeles
Cnty., Cal. v. Rettle, 550 U.S. 609, 616 (2007) (describing
“probable cause” as “a standard well short of absolute certainty”).
32
The allegation that RCSD deputies arrested Plaintiff for
trespassing, rather than for contempt, matters not. See Devenpeck,
543 U.S. at 153 (“Our cases make clear that an arresting officer’s
state of mind (except for the facts that he knows) is irrelevant to
the existence of probable cause. That is to say, his subjective
reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause.
As we have
repeatedly explained, the fact that the officer does not have the
state of mind which is hypothecated by the reasons which provide
the legal justification for the officer’s action does not
invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.” (internal citations and
quotation marks omitted)).
61
556 U.S. at
678.
The
establishing
that
absence
Plaintiff
of
faces
non-conclusory
ongoing,
allegations
unconstitutional
exclusion from any public buildings also deprives her of standing
to seek (and this Court of jurisdiction to award) injunctive relief
on that front (as the Complaint requests (see Docket Entry 2 at
62).
See generally City of L.A. v. Lyons, 461 U.S. 95, 102 (1983)
(observing that, to make out standing necessary for federal court
to possess jurisdiction, a plaintiff’s allegations of “injury or
threat of injury must be both real and immediate, not conjectural
or hypothetical” (internal quotation marks omitted)).
Likewise,
the Court cannot grant the requests that it enjoin certain of the
Richland County Sheriff’s detainee practices and/or aspects of a
circuit court judge’s commentary from the bench (see Docket Entry
2 at 62) because said requests stray too far afield from the
substance of the instant false arrest and denial of access claims,
see, e.g., PBM Prods., 639 F.3d at 128; Hayes, 10 F.3d at 217.
As
a
final
matter,
Plaintiff’s
instant
claim(s)
involve
factually frivolous allegations, such as:
1) “[Plaintiff] viewed [the April 1, 2010] [O]rder as a trap
to call her cases for trial without notice” (Docket Entry 2 at 55);
2) “[Richland County’s Clerk of Court] instructed her staff to
not timely or at all serve notices on [Plaintiff]” (id.);
3) “[supervisory RCSD deputies] urge[d] their subordinates to
provoke [Plaintiff] in the hope of justifying a new arrest” (id.);
62
4) Plaintiff’s arrest on March 23, 2011 “was meant to . . .
intimidate her to plead guilty to charges of which she is innocent
or [to] try her in her absence and wrongly convict her [as well as
to] make her and her family suffer because they are highly educated
immigrants” (id. at 58); and
5) a circuit court judge’s law clerk “signed up with [a law
firm working for Plaintiff’s landlord] and abused his office to
render services to that firm by sabotaging [Plaintiff’s] civil case
against [her landlord] . . . [and Plaintiff’s] motion [in one of
her criminal cases] to end all travel restrictions on her so she
could see her then-hospitalized mother in Ohio” (id.).
The fantastic character of such allegations affords another
basis
for
dismissal
1915(e)(2)(B).
of
the
claim(s)
under
Section
See Nasim, 64 F.3d at 954.
VI.
Plaintiff’s
instant
Complaint
Conclusion
presents
frivolous
and
malicious
allegations, fails to state a claim, and names Defendants not
subject to or immune from liability.
Those circumstances all
require dismissal of this action under Section 1915(e)(2)(B).
This Memorandum Opinion has detailed the numerous, fundamental
deficiencies of Plaintiff’s Complaint, as well as her extensive,
prior history of vexatious litigation, to demonstrate that a need
likely exists for action against Plaintiff stronger than simply
dismissal under Section 1915(e)(2)(B), particularly given that she
63
has expressed an intent to file more lawsuits (see Docket Entry 2
at 4, 23, 32, 50-51, 52, 54).
Most notably, “the All Writs Act,
28 U.S.C. § 1651(a) (2000), grants federal courts the authority to
limit access to the courts by vexatious and repetitive litigants
like [Plaintiff].”
Cromer v. Kraft Foods N. Am., Inc., 390 F.3d
812, 817 (4th Cir. 2004).
The Fourth Circuit, however, has
demanded careful assessment of various factors prior to imposition
of an injunction limiting a plaintiff’s right to file federal
lawsuits, “including (1) the party’s history of litigation . . .;
(2) whether the party had a good faith basis for pursuing the
litigation . . .; (3) the extent of the burden on the courts . . .;
and (4) the adequacy of alternative sanctions.”
Id. at 818; see
also id. (identifying contempt as an option that courts generally
must consider); Fed. R. Civ. P. 11(c)(1) (“If, after notice and a
reasonable opportunity to respond, the court determines that Rule
11(b) [which requires a party to have a legitimate basis for a
filing] has been violated, the court may impose an appropriate
sanction . . . .”) & (4) (“The sanction may include nonmonetary
directives [and/or] an order to pay a penalty into court[.]”).
This Memorandum Opinion establishes that Plaintiff has engaged
in a decades-long pattern of frivolous, bad-faith litigation that
has sorely taxed the federal court system.
She should consider
herself on notice that any further submission of frivolous or
malicious material (in this or any other case in this or any other
64
federal court) may result in entry of an order to show cause why
she should not face sanctions, including a pre-filing injunction.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to
Proceed in forma pauperis (Docket Entry 1) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS FURTHER ORDERED that, in light of the recommendation of
dismissal, Plaintiff’s Motion for Leave to File Electronically
(Docket Entry 4) is DENIED.
IT
IS
RECOMMENDED
that
this
action
be
dismissed
under
28 U.S.C. § 1915(e)(2)(B) as frivolous and malicious, for failure
to state a claim, and due to the immunity of some Defendants.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 15, 2014
65
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