Smalls v. Sterling et al

Filing 20

ORDER AND OPINION adopting 17 Report and Recommendation of Magistrate Judge Mary Gordon Baker. The Court DISMISSES WITH PREJUDICE the complaint. The Court FINDS that the complaint is a frivolous filing and therefore counts as a strike under 28 U.S.C. § 1915(g). This dismissal is Plaintiff's third strike under 28 U.S.C. § 1915(g). The Court therefore ORDERS that, absent exceptional circumstances, the Clerk of Court shall not accept any future complaint from Demetrius Jarod Smalls unless the filing fee is paid in full. Signed by Honorable Richard M Gergel on 5/11/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Demetrius Jarod Smalls, #28606,
Plaintiff,

v.
Bryan Sterling, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending the complaint be summarily dismissed. For the reasons set forth below, the
Court adopts the Report and Recommendation.
I.

Background

On June 26, 2007, Plaintiff pleaded guilty to two counts of armed robbery, assault and
battery with intent to kill, and kidnapping. Since his incarceration, he has filed numerous civil
cases in this District, which have been summarily dismissed as frivolous. E.g., Case Nos. 2:17208; 2:16-2676, 8:16-2582,2:15-4014,2:15-2510,2:14-3215, 2:14-958, 2:13-3374. In the present
case, Plaintiff seeks "punitive damages in the amount of $75,000 severally and jointly for each
defendant's role in the web of conspiracy to deprive Plaintiff of due process of lawlEqual
Treatment under color of state law, and depriving Plaintiff of his immunities against systematic
cruel and unusual punishment; jury trial issues of facts" and injunctive relief "to prohibit the usage
of GA 1.03 Policy." "GA 1.03" is the South Carolina Department of Corrections policy that
provides inmates access to the courts, to attorneys, and to law libraries.

-1-

On April 18, 2017, the Magistrate Judge recommended summary dismissal of the
complaint as a frivolous filing under 28 U.S.C. § 1915. Plaintiff filed no objections to the Report
and Recommendation.

II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(I). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation," see Diamond v. Colonial Life & Accident
Ins. Co., 416 FJd 310,315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby

v. Davis, 718 F.2d 198 (4th Cir. 1983).

III.

Discussion
The 36-page amended complaint is patently frivolous for the reasons the Magistrate Judge

explains in considerable detail. (See Dkt. No. 17 at 9-20.) In short, Plaintiff claims that because
he is a "sovereign citizen" or secured creditor under the Uniform Commercial Code his
imprisonment violates his "sovereign immunity rights protection secured to him by the Ninth and
Tenth Amendments." (See Dkt. No. 13-1.) Claims based on a "sovereign citizen" theory are
frivolous. Gaskins v. South Carolina, No. 2: 15-CV-2589-DCN, 2015 WL 6464440, at *4 (D.S.C.
-2-

Oct. 26, 2015). Plaintiff also asserts frivolous claims that imprisonment violates the Thirteenth
Amendment, that prison officials denied his grievance filings, that he has not been allowed to make
as many photocopies as he wished, that he does not like his prison cell assignment, and that U.S.
District Judge Richard Gergel, retired U.S. Magistrate Judge Wallace Dixon, and S.C. Attorney
General Alan Wilson have somehow conspired against him. Those claims are also frivolous for
the reasons the Magistrate Judge ably sets forth.
"With the Prisoner Litigation Reform Act ("PLRA"), Congress sought to reduce the
number of frivolous lawsuits flooding the federal courts." Blakely v. Wards, 738 F.3d 607, 609
(4th Cir. 2013). "Congress did so in part by enacting 28 U.S.C. § 1915(g), a "three-strikes" statute
providing that if a prisoner has already had three cases dismissed as frivolous, malicious, or for
failure to state a claim for which relief may be granted, the prisoner generally may not proceed in

forma pauperis but rather must pay up-front all filing fees for his subsequent suits." Id
The Court finds this action is frivolous and summarily dismisses it for that reason. This is
at least the third time this Court has summarily dismissed an action brought by this Plaintiff as
frivolous. See Smalls v. Wilson, Civ. No. 2: 15-4014-MBS-MGB, 2016 WL 2731064, at *2 (D.S.C.
May 11,2016), af!'d, 670 F. App'x 803 (4th Cir. 2016); Smalls v. Wilson, Civ. No. 2:15-2510RMG-MGB, slip op. at 2 (D.S.C. Oct. 14, 2015). Petitioner now has three "strikes." Absent
exceptional circum" tances, he is now barred by statute from filing any future non-habeas civil
s
action in any federal court without full payment of the filing fee.

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge (Dkt. No. 17) as the Order of the Court and DISMISSES WITH PREJUDICE
the complaint. The Court FINDS that the complaint is a frivolous filing and therefore counts as a
strike under 28 U.S.C. § 1915(g). This dismissal is Plaintiffs third strike under 28 U.S.C.
-3-

§ 1915(g). The Court therefore ORDERS that, absent exceptional circumstances, the Clerk of
Court shall not accept any future complaint from Demetrius Jarod Smalls unless the filing fee is
paid in full.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
May jl, 2017
Charleston, South Carolina

-4-