Bey v. Jefferson et al

Filing 17

ORDER AND OPINION adopting 13 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). Signed by Honorable Richard M Gergel on 5/11/2017.(ssam, )

Demeian Pinckney Bey,
Plaintiff,

v.
Deidra Jefferson, et al.,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER AND OPINION

----------------------------~)
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary dismissal of the complaint. For the reasons set forth below, the
Court adopts the Report and Recommendation.

I.

Background
Plaintiff is currently incarcerated at the Berkeley County Detention Center for failure to

appear on charges of heroin trafficking, cocaine trafficking, and assault and battery. Plaintiff has
previously filed several cases in this Court in attempts to interfere with pending state prosecutions
against him and attempting to sue state court officials, judges, and prosecutors. Those cases were
summarily dismissed. In the present case, he claims, "The Court never establish jurisdiction but
continue to move forward without jurisdiction that lead to Demeian Bey being detain" and "the
unconstitutional charges under which the Petitioner is being forced to answer are nonconstitutional on their face and unconstitutional when applied to the Petitioner because they do not
have an enacting clause or single subject title, thereby denying due process oflaw."
On April 24, 2017, the Magistrate Judge recommended summary dismissal of the
complaint. On May 8, 2017, he timely mailed objections to the Report and Recommendation.

-1-

II.

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

has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002).
"[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.

Jackson, 831 F. Supp. 2d 911, 914 (M.D.N.C. 2010) (listing cases).

III.

Discussion
The complaint is frivolous for the reasons the Magistrate Judge ably sets forth in the Report

and Recommendation. In short, Plaintiff claims his detention is illegal because the state court has
no jurisdiction over him, because he is a "sovereign citizen," a secured creditor under the Uniform
Commercial Code, and a member of the Moorish Nation. Those claims are frivolous. Gaskins v.

South Carolina, No. 2: 15-CV-2589-DCN, 2015 WL 6464440, at *4 (D.S.C. Oct. 26, 2015).
Moreover, a § 1983 action may not be used to interfere with a state criminal prosecution. Younger
v. Harris, 401 U.S. 37,45 (1971). Further, all named Defendants have absolute immunity from
this suit. The named Defendants are three judges, the Berkeley County Clerk of Courts, an
-2-

assistant solicitor, and the "South Carolina 9th Judicial Circuit," all sued for their official acts. The
judges have absolute judicial immunity, the Clerk of Courts has absolute quasi-judicial immunity,
the assistant solicitor has absolute prosecutorial immunity, and the South Carolina 9th Judicial
Circuit has absolute sovereign immunity under the Eleventh Amendment.
Plaintiffs objections are all frivolous. For example, he argues that the State of South
Carolina is a corporation, not a sovereign state, because there is a Dun & Bradstreet number
associated with it. He argues that the state-court bench warrant for his arrest for failure to appear
is somehow improper because it issued while he was at the federal courthouse in Charleston filing
frivolous claims. He argues that all of North America and South America are the "dominion of
the Moors." He argues that this Court has jurisdiction over his claim because the assistant solicitor
"is from France, meaning her nationality is 'Polish,' which is diversity of citizenship."
"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 Plaintiff's first
strike (the summary dismissal of Plaintiffs previous cases are not strikes because those actions
were dismissed without prejudice). If Plaintiff continues to file frivolous pleadings, he risks the
accumulation of three strikes against him and the resulting denial of future requests for in forma
pauperis status.

-3-

IV.

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

Magistrate Judge (Dkt. No. 13) 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).
AND IT IS SO ORDERED.

United States District Court Judge
May _1_',2017
Charleston, South Carolina

-4-