Rice v. National Security Council

• Decision Date: 08 June 2001
• Docket Number: No. CIV. 9:00-3937-13AJ.,CIV. 9:00-3937-13AJ.
• Citation: 244 F.Supp.2d 594
• Court: U.S. District Court — District of South Carolina
• Parties: Ronald E. RICE, # 86456-071, and Victory Mills, # 89987-071, Petitioners v. NATIONAL SECURITY COUNCIL; United States Department of Justice; Central Intelligence Agency; State of Arkansas; Southern Air Transport; Estate of George W. Bush; Estate of William French Smith; Edwin Meese; Richard Thornburgh; William Barr; Janet Reno; Estate of William Casey; Robert Deutch; George Tenet; Estate of William Jefferson Clinton; Raymond "Buddy" Young; and John Doe(s) XXX, Respondents.

244 F.Supp.2d 594

Ronald E. RICE, # 86456-071, and Victory Mills, # 89987-071, Petitioners v. NATIONAL SECURITY COUNCIL; United States Department of Justice; Central Intelligence Agency; State of Arkansas; Southern Air Transport; Estate of George W. Bush; Estate of William French Smith; Edwin Meese; Richard Thornburgh; William Barr; Janet Reno; Estate of William Casey; Robert Deutch; George Tenet; Estate of William Jefferson Clinton; Raymond "Buddy" Young; and John Doe(s) XXX, Respondents.

No. CIV. 9:00-3937-13AJ.

United States District Court, D. South Carolina, Beaufort Division.

June 8, 2001.

Ronald E Rice, Estill Correctional Institution, Estill, SC, Pro se.

Victory Mills, Estill Correctional Institution, Estill, SC, Pro se.

ORDER

GERALD ROSS ANDERSON, JR., District Judge.

The Petitioners Ronald E. Rice (Rice) and Victory Mills (Mills), federal prisoners proceeding pro se, filed this action as an apparent claim against the Defendants which seeks to hold them liable for drugsmuggling activities. Ultimately, Rice and Mills contend, the Defendants' misconduct led to Rice's conviction and Mills' guilty plea in this Court on narcotics charges.

Since Rice and Mills are pro se petitioners, their pleadings are to be accorded liberal construction. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291 (4th Cir.1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir.1978). Pro se Complaints are held to a less stringent standard than those drafted by attorneys. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam). Even under this less stringent standard, however, the pro se Complaint is still subject to summary dismissal.

The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented. Barnett v. Hargett, 174 F.3d 1128 (10th Cir.1999), A court may not construct the plaintiffs legal arguments for him. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert, denied, 475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 729 (1986). Ultimately, this Court cannot ignore a clear failure in the pleading to allege facts supporting a claim cognizable in a federal district court. Wetter v. Department of Social Services, 901 F.2d 387 (4th Cir.1990). Such is the case with the present Complaint.

PROCEDURAL BACKGROUND

Rice was convicted in United States v. Ronald Eugene Rice, Criminal No. 7:90-0310-2, upon a jury verdict. On February 9, 1991, he was sentenced by this Court: to life imprisonment on Count 1 (conspiracy to possess with intent to distribute crack cocaine); 480 months in prison on Count 2 (possession of crack cocaine with intent to distribute); 240 months on Count 3 (maintaining residence for distributing cocaine) and Count 4 (aiding and abetting). Rice appealed, and his convictions and sentences were upheld in United States v. Rice, 976 F.2d 728, 1992 WL 240686 (4th Cir.1992), cert, denied, Stevens v. United States, 507 U.S. 1056, 113 S.Ct. 1958, 123 L.Ed.2d 662 (1993). On June 25, 1996, however, pursuant to a post-judgment motion, this Court reduced Rice's term of imprisonment to 324 months. Mills entered a guilty plea to charges of conspiracy to possess with the intent to distribute cocaine base. United States v. Victory Mills, Criminal No. 7:93-279-30. This Court takes judicial notice of its own records with respect to these underlying convictions. Daye v. Bounds, 509 F.2d 66 (4th Cir.1975).

REPORT OF THE MAGISTRATE JUDGE

This matter is before the Court to issue a final order on the Magistrate Judge's Report and Recommendation filed December 27, 2000, which recommended summary dismissal of the Complaint. The Magistrate Judge makes only a recommendation to this Court, which has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (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, and the Court may accept, reject or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

In the Report and Recommendation, Rice and Mills' claims have been thoroughly examined. The Magistrate Judge has charitably treated their action as one brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the judicially created analogue to a claim under 42 U.S.C. § 1983. Court decisions under 42 U.S.C. § 1983 also apply in Bivens actions. Thus, both Rice and Mills are required to obtain a reversal or expungement of their criminal convictions before seeking to recover damages for violation of civil rights. Heck v. Humphrey, 512 U.S. 477,114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) literally states that a claim under 42 U.S.C. § 1983 (and, thus, Bivens) cannot arise until the underlying conviction has been set aside. Neither plaintiff has made such a showing. The Report and Recommendation also examines the immunities which would preclude Rice and Mills from suing the various Defendants, concluding that upon these grounds, too, the action should be dismissed.

Alternatively, the Magistrate Judge has considered this Complaint as if it were brought under the Federal Tort Claims Act (FTCA), noting however that litigants must comply with its requirement for a prior administrative claim addressed to the defendant agency or agencies. 28 U.S.C. § 2675. The plaintiffs have made no effort to comply with this statutory requirement.

It remains only to add to the findings of the Magistrate Judge that Rice and Mills have failed to allege with particularity how the actions of the Defendants directly affected them. This failure implicates the bedrock concept in American jurisprudence of standing. In United States v. Hays, 515 U.S. 737, 742-743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995), the Supreme Court succinctly summarized the law of standing:

It is by now well settled that "the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. . . .Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

RECOMMENDATIONS ADOPTED

The Magistrate Judge has found that this action is frivolous and malicious under the Prison Litigation Reform Act (PLRA), 28 U.S.C.1915(e)(2)(B)(1), and that it should be summarily dismissed under 28 U.S.C.1915A(b). This recommendation is amply justified as well as the finding that this dismissal should be deemed a "strike" as to each plaintiff for purposes of the "three strikes" rule, 28 U.S.C. § 1915(g).

Moreover, the Magistrate Judge recommends that this Court revoke each plaintiffs good time credits (if any) that have not yet vested in the Federal Bureau of Prisons (BOP). 28 U.S.C. § 1932 ("second"). This recommendation also appears appropriate.

The Report and Recommendation of the Magistrate Judge is adopted in its entirety, and the Complaint herein is dismissed without prejudice.

This dismissal shall be deemed a "strike" as to Ronald E. Rice and as to Victory Mills under the "three strike" rule of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).

The United States Attorney for the District of South Carolina shall notify the Federal Bureau of Prisons (BOP) that the non-vested good time credits of Ronald E. Rice and of Victory Mills have been revoked.

AND IT IS SO ORDERED.

NOTICE OF RIGHT TO APPEAL

Plaintiffs have the right to appeal this Order within sixty (60) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate Procedure, will waive the right to appeal.

Report and Recommendation

CARR, United States Magistrate Judge.

Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 324-325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Nasim v. Warden, Mainland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc), cert, denied, 516 U.S. 1177, 116 S.Ct. 1273, 134 L.Ed.2d 219 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983); and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir.1979). This court is required to construe pro se complaints and petitions liberally. Such pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert, denied, Leeke v. Gordon, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978), and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9,101 S.Ct. 173, 66 L.Ed.2d 163 (1980); and Cruz v. Beto, 405 U.S....