Bey v. Colon

• Decision Date: 10 July 2019
• Docket Number: C/A: 2:19-941-BHH-BM
• Court: U.S. District Court — District of South Carolina
• Parties: Dreyah Moorae Bey, a/k/a or f/k/a Andrea Moire Coaxum, Plaintiff, v. Jobany Colon; County of Charleston, South Carolina; Nina L. Savas, Assistant Solicitor; Judge Jennifer McCoy, Defendants.

Dreyah Moorae Bey, a/k/a or f/k/a Andrea Moire Coaxum, Plaintiff, v. Jobany Colon; County of Charleston, South Carolina;Nina L. Savas, Assistant Solicitor; Judge Jennifer McCoy, Defendants.

C/A: 2:19-941-BHH-BM

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

July 10, 2019

REPORT AND RECOMMENDATION

This is a civil action filed by the Plaintiff, Dreyah Moorae Bey, also known as or formerly known as Andrea Moire Coaxum, pro se, and is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

Background

Plaintiff asserts that she brings this action pursuant to 42 U.S.C. § 1983 and claims that her statutory rights under 18 U.S.C. § 242 have been violated. She also appears to allege state law claims. Complaint, ECF No. 1 at 3-5. Plaintiff submitted various attachments to her Complaint, including a document titled "IN THE NATURE OF SUPPLEMENTAL RULES FOR ADMINISTRATIVE AND MARITIME CLAIMS RULES C(6)"; copies of Defendant Jobany Colon's criminal sentencing sheets; General Services Administration (GSA) Standard Forms 24, 24,25, 25A, and 28; the United Nations Declaration of the Rights of Indigenous Peoples; a document titled "AFFIDAVIT OF CLAIM"; purported certified copies of various public documents; a purported Uniform Commercial Code (UCC) Financing Statement; a document titled "SECURITY AGREEMENT/FEE SCHEDULE/DBA"; and a document titled "THE MOORISH DIVINE AND NATIONAL MOVEMENT OF THE WORLD LEGAL NOTICE! NAME DECLARATION, CORRECTION PROCLAMATION AND PUBLICATION". (ECF No. 1-1).¹

Plaintiff asserts that Defendant Jobany Colon murdered her son, Davon Smith, Jr., on May 19, 2017. ECF No. 1 at 5. Records from Charleston County indicate that on January 10, 2019, Colon pled guilty and was sentenced to twenty-five years imprisonment for manslaughter/voluntary manslaughter, and pled guilty and was sentenced to five years as to a charge of weapons/possession of a weapon during a violent crime. See Charleston County Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10001&Casenum=2017A1010202982&CaseType=C&HKey=907977109787373109701229781114521098275101868511483119535078101887011410711867848986531211168011957115 (manslaughter); https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10001&Casenum=2017A1010202983&CaseType=C&HKey=77105101481071201085656667486541031151181078581881171207110955494786102751141116852114831027010273677652 (weapons).² Defendant Nina L. Savas, Assistant Solicitor, was the prosecutor, and Defendant Judge Jennifer McCoy was the presiding judge, for Colon's criminal cases. As relief, Plaintiff requests:

ENFORCE TORT CLAIM DUE TO COURT'S DISHONOR OF SPECIFIC PERFORMANCE WITHIN TIMEFRAME - ACCUSED ACCEPTED PLEA DEAL & WAIVED HIS RIGHTS.

ECF No. 1 at 6. In the documents attached to her Complaint, Plaintiff requests that she be awarded $700,000,000, and that twelve of her son's relatives each be awarded $350,000,000. (ECF No. 1-1 at 5-6).

Discussion

Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 319. Further, while this Court is also required to liberally construe pro se documents, holding themto a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the requirement of liberal construction does not mean that the Court can ignore a clear failure in a pleading to allege facts which set forth a claim currently cognizable in a federal court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.

Initially, Plaintiff's Complaint is subject to dismissal because it is characterized by what some courts have described as "buzzwords" or "legalistic gibberish." See, e.g., Rochester v. McKie, No. 8:11-797, 2011 WL 2671228, at *1 (D.S.C. July 8, 2011) (citing Yocum v. Summers, No. 91-3648, 1991 WL 171389, at *1 (N.D.Ill. Aug. 30, 1991)).Although Plaintiff lists one criminal statute (18 U.S.C. § 242) as an alleged basis of federal jurisdiction (which is discussed further below), her allegations are so generally incomprehensible and filled with what could only be considered by a reasonable person as unconnected, conclusory, and unsupported comments, or "gibberish," that it is unclear what is to be made of them. See Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) [Noting that federal courts lack power to entertain claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit"]; see also Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2nd Cir. 1998); Adams v. Rice, 40 F.3d 72 (4th Cir. 1994)[Affirming dismissal of plaintiff's suit as frivolous where allegations were conclusory and nonsensical on their face]. Thus, Plaintiff's Complaint is in violation of the directive in Federal Rule of Civil Procedure 8(a) that pleadings shall contain "a short and plain statement" of the basis for the court's jurisdiction and of the basis for a plaintiff's claims against each defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)[requiring, in order to avoid dismissal, "'a short and plain statement of theclaim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'"].

Plaintiff attached to her Complaint a copy of what appears to be a tort claim (requesting that she and her son's relatives be paid monetary damages) which she allegedly presented to the "Solicitor's Office" and "The Charleston County Judicial Court" with copies of "Bid Bond", "Payment Bond", and "Affidavit of Individual Surety" forms from the GSA. It is unclear how these forms, used in conjunction with federal government contracting bids, apply to Plaintiff's allegations against a private individual (Colon) and the State of South Carolina Defendants. Moreover, although Plaintiff attached a copy of the United Nations Declaration on the Rights of Indigenous Peoples to her Complaint, there is nothing to indicate that she may bring a claim pursuant to it, and this document is not a legally binding instrument under international law. See El v. Delgado, No. 1:10CV38, 2010 WL 5201195 (N.D.W.Va. Nov. 5, 2010)(citing to "Frequently Asked Questions Declaration on the Rights of Indigenous Peoples www.un.org").

Plaintiff has also failed to state any theory for which she has a cause of action under the Uniform Commercial Code (UCC), which sets forth that one of its primary purposes is "to simplify, clarify, and modernize the law governing commercial transactions." UCC, § 1-103(a)(1)[Construction of [Uniform Commercial Code] to Promote its Purposes and Policies; Applicability of Supplemental Principles of Law]. Court proceedings, such as the civil § 1983 action she brings here are not "commercial transactions." See, e.g., Bey v. Jefferson, No. 2:17-1007-RMG-MGB, 2017 WL 9250348 (D.S.C. Apr. 24, 2017), adopted by 2017 WL 1956979 (D.S.C. May 11, 2017).

In response to a question on the Complaint form asking what federal constitutional or statutory right Plaintiff claims was violated, she wrote "USC Title 18 Part 1 Chapter 13 § 242." ECF No. 1 at 4. However, this is a criminal statute that does not give rise to civil liability or authorize a private right of action. See United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003)[finding that the District Court properly dismissed defendant's claim filed pursuant to 18 U.S.C. §§ 241 and 242 because he had no private right of action under either of those criminal statutes]; Wagner v. United States, 377 F.Supp.2d 505, 510-511 (D.S.C. 2005) [§ 241 is a criminal statute that provides no private cause of action]; Rockfeller v. U.S. Ct. of Appeals Office, 248 F.Supp.2d 17, 23 (D.D.C. 2003)[the plaintiff was precluded from bringing case under § 242 because there is no private cause of action under this criminal statute](collecting cases). Here, although Plaintiff states that she is asserting her claims pursuant to 42 U.S.C. § 1983, she has failed to allege any comprehensible claim that any of her rights under the Constitution or the laws of the United States were violated.³

Moreover, although Plaintiff requests monetary damages on behalf of some of her family members, none of these purported plaintiffs has signed the Complaint. To the extent that Plaintiff is attempting to assert claims on behalf of these family members, she may not do so. While an individual's right to represent himself or herself pro se in federal court is protected by statute; see28 U.S.C. § 1654; the right to litigate one's claims without an attorney "does not create a coordinate right to litigate for others."...