Fishbourne v. Federal Bureau of Investigation et al

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATION adopts 22 Report and Recommendation. This action is DISMISSED with prejudice and without issuance and service of process. Signed by Honorable Timothy M Cain on 5/28/2020. (gpre, )

8:20-cv-01480-TMC

Date Filed 05/28/20

Entry Number 26

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

)
)
)
Plaintiff,
)
)
vs.
)
Federal Bureau of Investigation; )
Internal Revenue Service; South )
Carolina
Department
of )
Corrections; and South Carolina )
)
Law Enforcement Division,
)
)
Defendants.
____________________________)

Ricardo Fishbourne,

Civil Action No. 8:20-cv-01480-TMC
ORDER

Plaintiff Ricardo Fishbourne (“Plaintiff”), a state prisoner proceeding pro se
and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983 alleging the
Defendants violated his constitutional rights. (ECF No. 1). The case was referred
to a magistrate judge for all pretrial proceedings pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). On April 21, 2020, the
magistrate judge issued a Report and Recommendation (“Report”) finding the case
was subject to summary dismissal. (ECF No. 9). On May 4, 2020, Plaintiff filed
objections to the Report as well as an Amended Complaint. (ECF Nos. 13, 16). In
light of the Amended Complaint, the court recommitted the matter to the magistrate
judge for further review. (ECF No. 18). Accordingly, now before the court is the
magistrate judge’s Report on the Amended Complaint, again recommending that the
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court dismiss this action without issuance and service of process. (ECF No. 22).
Plaintiff filed objections to the Report, (ECF No. 24), and this matter is now ripe for
review.
BACKGROUND
In the Report, the magistrate judge sets forth the relevant facts and legal
standards, which are incorporated herein by reference. See (ECF No. 22). Briefly,
Plaintiff alleges that the Federal Bureau of Investigation (“FBI”), the Internal
Revenue Service (“IRS”), the South Carolina Department of Corrections (“SCDC”),
and the South Carolina Law Enforcement Division (“SLED”) “defamed . . . his
character by using [him] as bait to lure in informants via cellphone,” in violation of
the Fifth and Fourteenth Amendments. (ECF No. 16 at 4). Specifically, Plaintiff
alleges that he “was used by the named Defendants to build a cellphone network
with inmates, and, 50 to 75 parties that were granted immunity.” (ECF No. 16-1 at
3–4).
According to the Complaint, beginning in 2007 and continuing to the present,
Defendants have “used 50-75 third parties to set a trap for Plaintiff to use Plaintiff
as bait.” (ECF No. 16 at 5). Plaintiff claims that the FBI and SLED charged a thirdparty, Richard Leon Pinckney, with insurance fraud and that Mr. Pinckney then
implicated between 50-75 other individuals in exchange for a lesser sentence. Id.;
see also (ECF No. 16-1 at 1). Plaintiff alleges that the FBI and SLED charged the

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other 50 to 75 individuals, but “granted them immunity in return for using the
Plaintiff as bait to lure in possible informants or workers.” (ECF No. 16-1 at 1).
When Plaintiff discovered he was being used as “bait,” he “stopped using cellphones
to call those 50-75 people that were granted immunity for using the Plaintiff as bait.”
Id. at 2. However, Plaintiff claims that when he stopped using the cellphones,
Defendants directed inmates to “lynch[] the Plaintiff until [he] submitted and had no
other choice but to start back using cellphones.” Id. As a result, Plaintiff claims he
was repeatedly “lynched,” stabbed, and robbed by other inmates working for
Defendants through a cell phone network. Id. at 1.
As to the IRS, Plaintiff alleges it charged numerous individuals with tax fraud
and subsequently granted them immunity in exchange “for their using the Plaintiff
as bait also.” Id. at 3. Similarly, Plaintiff claims that SCDC “has so-called female
friends of the Plaintiff operating also.” Id. at 3. Plaintiff asserts that Defendants’
actions have “defamed [his] character as a sacrifice for them to create the network
they have now” by convincing the entire prison population that Plaintiff is working
for Defendants. Id. at 6. Plaintiff also alleges that Defendants have directed other
inmates to tamper with and poison Plaintiff’s food. See id. at 7. For relief, Plaintiff
seeks five million dollars in compensatory damages from each defendant and an
immediate transfer out of the South Carolina prison system. Id. at 5.

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STANDARD OF REVIEW
The recommendations set forth in the Report have no presumptive weight, and
this court remains responsible for making a final determination in this matter. See
Matthews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making
a de novo determination of those portions of the Report to which a specific objection
is made, and the court may accept, reject, modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need only review for clear error “those
portions which are not objected to—including those portions to which only ‘general
and conclusory’ objections have been made[.]” Dunlap v. TM Trucking of the
Carolinas, LLC, 288 F. Supp. 3d 654, 662 (D.S.C. 2017). “An objection is specific
if it ‘enables the district judge to focus attention on those issues—factual and legal—
that are at the heart of the parties’ dispute.’” Id. at 662 n.6 (quoting United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents,
Known As: 2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)). On
the other hand, objections which merely restate arguments already presented to and
ruled on by the magistrate judge or the court do not constitute specific objections.
See, e.g., Frazier v. Wal-Mart, C.A. No. 6:11-1434-MGL, 2012 WL 5381201, at *1
(D.S.C. Oct. 31, 2012) (noting that “almost verbatim restatements of the arguments
made in previously ruled upon discovery motions” are not specific objections);

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Ashworth v. Cartledge, Civ. A. No. 6:11-cv-01472-JMC, 2012 WL 931084, at *1
(D.S.C. March 19, 2012) (noting that objections which were “merely almost
verbatim restatements of arguments made in his response in opposition to
Respondent’s Motion for Summary Judgment . . . do not alert the court to matters
which were erroneously considered by the Magistrate Judge”). Furthermore, in the
absence of specific objections to the Report, the court is not required to give any
explanation for adopting the magistrate judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
Additionally, since Plaintiff is proceeding pro se, this court is charged with
construing his filings liberally in order to allow for the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). This does not mean, however, that the court can
ignore the Plaintiff’s failure to allege or prove facts that establish a claim currently
cognizable in a federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990).
DISCUSSION
In her Report, the magistrate judge recommends that the court dismiss
Plaintiff’s complaint with prejudice because each of the defendants is immune from
suit and because Plaintiff has failed to allege a cognizable claim against the
Defendants. (ECF No. 22 at 7–10, 13). Although Plaintiff filed objections to the

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Report, they all fail to specifically challenge any of the findings or conclusions in
the Report. See (ECF No. 24). Rather, the objections are non-specific, unrelated to
the dispositive portions of the Report, or merely restate Plaintiff’s claims. See id.
In fact, most of Plaintiff’s objections merely repeat allegations and arguments raised
in his Amended Complaint. See (ECF Nos. 16, 61-1, 24). However, restating
arguments previously submitted to the court does not constitute a specific objection
to the magistrate judge’s Report.

See Frazier, 2012 WL 5381201, at *1.

Accordingly, Plaintiff’s objections are without merit.
Moreover, even liberally construing the objections, the court is only able to
glean that Plaintiff objects to the magistrate judge’s finding that Plaintiff’s
allegations are frivolous and fail to state a plausible cause of action. See (ECF Nos.
22 at 10; 24 at 1–3). However, as the magistrate judge recognized, it is within the
district court’s “discretion to dismiss the case for factual frivolousness ‘when the
facts alleged rise to the level of the irrational or the wholly incredible.’” (ECF No.
22 at 11 (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The court agrees
with the magistrate judge’s finding that “Plaintiff’s conclusory assertions fail to
show any arguable basis in fact or law.” Id. at 12. Additionally, to the extent
Plaintiff seeks to raise a claim for defamation, the magistrate judge correctly found
that an alleged defamatory act is not actionable under § 1983. Id. at 13. Therefore,
the court concludes that Plaintiff’s allegations fail to state an actionable claim for

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which relief may be granted. Accordingly, this objection is without merit and is
overruled.
Therefore, having thoroughly reviewed the record, the Report, and Plaintiff’s
objections, the court agrees with the magistrate judge’s conclusion that Defendants
are immune from suit and Plaintiff’s allegations are frivolous and fail to plead a
cause of action. (ECF No. 22). Thus, the court finds no reason to deviate from the
Report’s recommended disposition. The court adopts the magistrate judge’s Report,
id., and incorporates it herein. Accordingly, this action is DISMISSED with
prejudice1 and without issuance and service of process.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
May 28, 2020
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

1

The magistrate judge’s first Report, issued on April 21, 2020, informed Plaintiff that his
Complaint was subject to summary dismissal because each of the defendants is immune from suit
and the allegations fail to state a cognizable cause of action. (ECF No. 9). Plaintiff filed his
Amended Complaint on May 4, 2020, (ECF No. 16), simultaneously with his objections to the
initial report, (ECF No. 13). Nevertheless, the magistrate judge found that Plaintiff’s Amended
Complaint does not cure the deficiencies in the original complaint, because the defendants are still
immune from suit and Plaintiff has alleged no facts which support a cognizable claim for which
relief may be granted. (ECF No. 22 at 1–2, 7, 13–14).
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