El-Bey v. Mount Pleasant, Town of et al

Filing 11

ORDER adopting 9 Report and Recommendation of Magistrate Judge Mary Gordon Baker. The Court SUMMARILY DISMISSES THE COMPLAINT WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Clerk refuse to accept any filings by Plaintiff EI-Bey without proper payment of required fees. Signed by Honorable Richard M Gergel on 1/6/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

DeWayne Alphonza EI-Bey
Plaintiff,

v.
Mount Pleasant, Town of, et al.,
Defendants.

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Case No. 2: 16-cv-3864-RMG

ORDER

This matter is before the Court on the Report and Recommendation e'R&R") of the
Magistrate Judge, recommending that this action be summarily dismissed without prejudice
under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6) because the action is frivolous and
fails to state a plausible claim for relief. (Dkt. No.9.) Plaintiff DeWayne Alphonza El-Bey,
proceeding pro se and in forma pauperis, has simultaneously I) attempted to remove his criminal
traffic case from Municipal Court to this Court and 2) filed a Complaint I under 42 U.S.C. § 1983
alleging that defendants variously violated his Constitutional rights in connection with his arrest
at a routine traffic stop.
Plaintiff was pulled over by a police officer on or around May 6, 2016, when the officer's
license plate screening equipment alerted the officer that Plaintiffs license plate had been
suspended because his insurance had been cancelled. Plaintiff demanded to see the officer's
credentials which the officer retrieved from his car and displayed for Plaintiff. Plaintiff
nonetheless refused the officer's directions to exit the vehicle. The officer, who had called for
reinforcements, then physically removed plaintiff from his car. The police impounded Plaintiff's

Plaintiff Submitted both a form Complaint and a Complaint of his own attached to the form as
an exhibit (together, the "Complaint").
I

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Hummer and its trailer. Following a hearing in Municipal Court in July 2016, Plaintiff was taken
to a detention center to serve sixty days in jail. (Dkt. No.1 at 8-11.)
Plaintiff filed a self-styled "Legal Notice of Removal" (Dkt. No. 1-1) in the present
action to attempt to remove his criminal traffic case from Municipal Court to this federal Court.
For the many reasons listed in the R&R, Plaintiff has not and cannot remove his criminal traffic
case to federal court. (Dkt. No.9 at 7-11.) The Municipal Court maintains exclusive jurisdiction
over Plaintiffs traffic case. (Id. at 11.) Under 28 U.S.C. § 1915(e)(2), district courts must
dismiss frivolous actions brought by litigants proceeding in forma pauperis. Plaintiffs attempt to
remove his criminal traffic case to federal court is frivolous because it lacks an arguable basis in
law or fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); McLean v. United States, 566 F.3d
391,399 (4th Cir. 2009). Plaintiffs action is therefore appropriate for dismissal under 28 U.S.C.

§ 1915(e)(2).
Plaintiff has also filed an action under 42 U.S.C. § 1983 seeking damages for alleged
violations of his First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights in connection with
his arrest and subsequent proceedings in Municipal Court. Plaintiffs allegations are extensive
and varied. Plaintiff alleges that, during the course of his arrest, he was "denied equal protection
[because the officers] acted very bias[ed] toward Plaintiffs religions [sic] belief'; "was arrested
without a warrant"; was "NOT read his Miranda rights"; was denationalized when he was
booked under a name he no longer uses, in violation of national and international law; was
"imprisoned absent verified complaint"; and was arrested "without cause or provocation" after
he "exercise[ed] his religious belief, plus rights and just wanted some conformation [sic] that
[the officer] had jurisdiction to deny Plaintiff rights to religious freedom, practices, unalienable,
and absolute rights." (Dkt. No. 1 at 9-14.) Plaintiff claims that the towing of his hummer

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"burdened his exercise of religion" and that he was "denied due process" at his Municipal Court
hearing. (ld. at 11, 13.) Despite these varied allegations, the facts Plaintiff has provided indicate
that he was arrested and later convicted because he refused to comply with an officer's request to
exit his car at a traffic stop. Plaintiff has not provided facts to support his many various
allegations of civil rights violations. Although Plaintiff alleges that he was the victim of "assault
[and] battery," Plaintiff has alleged only that the officer pressed Plaintiff's head against the seat
of his Hummer causing "extreme pain," and that the handcuffs he was placed in "were extremely
tight and was [sic] cutting the blood circulation in his hands." (ld. at 9.) The officers responded
to Plaintiff's complaint and loosened the handcuffs. (ld.) Plaintiff has not alleged that he
sustained any injuries during the arrest.
Plaintiff's allegations collectively amount to an argument that he was illegally arrested
for no reason, that defendants violated his constitutional rights, and that his conviction and
sentence were illegal. Because these allegations imply the invalidity of his conviction, the
Supreme Court has held that they "must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated." Heck v. Humphrey, 512 U.S. 477, 486­
87 (1994). Under Heck, a conviction or sentence has been invalidated if it has been "reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court's issuance of a writ of habeas
corpus." Id.
Plaintiff has not alleged and the record does not show that his conviction has been
invalidated in any way, so his Complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6)
for failure to state a claim.

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The Court therefore ADOPTS the Report and Recommendation (Dkt. No.9) as the Order
of the

Court,

and

SUMMARILY DISMISSES

THE

COMPLAINT

WITHOUT

PREJUDICE.
IT IS FURTHER ORDERED that the Clerk refuse to accept any filings by Plaintiff EI-

Bey without proper payment of required fees. Plaintiff represented in his application to proceed
in district court without paying fees or costs that he has zero wages, zero cash, zero money in a
checking or savings account, zero assets, zero regular monthly expenses, and zero debts or other
financial obligations. (Mot. for Leave to Proceed informa pauperis, EI-Bey v. Culnon, et al., No.
2: 16-03239-RMG, Dkt. No.3-I.) Plaintiffs responses indicate that he misrepresented his
financial condition or did not make a good faith effort to accurately complete the application.
Under 28 U.S.C.A. § 1915(e)(2)(A), this court shall dismiss a case at any time if it determines
that plaintiffs "allegation of poverty is untrue."

AND IT IS SO ORDERED.

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January
2017
Charleston, South Carolina

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