Wagner v. Hampton, Civil Action No.: 2:13-2406-GRA-WWD

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Docket NumberCivil Action No.: 2:13-2406-GRA-WWD
PartiesTheodore Wagner, Plaintiff, v. Officer Monica Hampton; Officer Ruth Daugherty; Officer Donald Simmons; La Toshia Spearing; PayComputerMonitoring.com; all in their Official and Individual Capacity, Defendants.
Decision Date02 July 2014

Theodore Wagner, Plaintiff,
Officer Monica Hampton; Officer Ruth
Daugherty; Officer Donald Simmons; La Toshia Spearing;
PayComputerMonitoring.com; all in their
Official and Individual Capacity, Defendants.

Civil Action No.: 2:13-2406-GRA-WWD


July 2, 2014


Plaintiff, Theodore Wagner ("Wagner"), files this action against Defendants Officer Monica Hampton, Officer Ruth Daugherty, Officer Donald Simmons, La Toshia Spearing, and PayComputerMonitoring.com, all in their official and individual capacities. Plaintiff is proceeding pro se and in forma pauperis, pursuant to 28 U.S.C. § 1915. Under the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(d) (D.S.C.), the undersigned United States Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the Court. Having reviewed the Complaint in accordance with applicable law, the undersigned recommends that it be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) because it fails to state a plausible claim on which relief may be granted by the Court. The undersigned further recommends that Wagner's Motion for a TRO should be denied.

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Wagner is a frequent filer with a long history of matters before this Court, including, United States v. Wagner, C/A No. 2:02-cr-181-PMD, United States v. Wagner, C/A No. 2:02-cr-181-PMD, Wagner v. United States, C/A No. 2:05-404-PMD, Wagner v. Ozmint, C/A No. 3:05-372-GRA, Wagner v. Crews et al., 3:05-1100-GRA, Wagner et al. v. Charleston County Jail et al., 3:05-1435-GRA, Wagner v. United States, 3:06-2838-PMD, Wagner v. State of South Carolina et al., 3:07-2698-GRA, Wagner v. United States, 3:08-2176-GRA, Wagner v. United States, 3:08-3235-GRA, and Wagner v. Obama et al, 3:13-708-GRA.

On April 9, 2002, Wagner was indicted for four counts of production of child pornography, and one count of possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(b). On August 14, 2002, Wagner pleaded guilty before the Honorable Patrick Michael Duffy to one count of production of child pornography and one count of possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5) (b). See United States v. Wagner, C/A No. 2:02-cr-181-PMD at ECF No. 36. Against the advice of his counsel, Wagner sought to withdraw his guilty plea, but the court denied the motion and sentenced him to 151 months imprisonment and to a term of supervised release of three years to run concurrently on each count.1 In addition to the standard terms of supervised release, the Court imposed several special conditions, including an instruction that Wagner "shall not possess, procure, purchase or otherwise obtain access to any form of computer network, bulletin board, Internet, or

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exchange format involving computers unless specifically approved by the Court or the US Probation Officer."

Wagner appealed his conviction and sentence to the Fourth Circuit Court of Appeals, and alleged prosecutorial misconduct. The Fourth Circuit affirmed the district court's rulings and rejected Wagner's allegations of prosecutorial misconduct as "not supported by the record." United States v. Wagner, 88 F. App'x 593, 595 (4th Cir. 2004). Wagner then appealed to the United States Supreme Court, which declined to grant certiorari. Wagner v. United States, 543 U.S. 939, 125 S. Ct. 339, 160 L. Ed. 2d 247 (2004).

Wagner filed a habeas petition pursuant to 28 U.S.C. § 2255 on February 8, 2005, and on June 22, 2005, alleging (1) that he received ineffective assistance of counsel because his attorney had a "change of loyalty;" (2) that the prosecution committed "misconduct and felonious acts;" (3) that the standard applied by the court in denying his request to withdraw his guilty plea was unconstitutional; and (4) that the FBI violated his right to due process by instructing state detectives to get a warrant using "known perjured statements." Judge Duffy granted the government's motion to dismiss the habeas petition, observing that "the evidence of Wagner's guilt was overwhelming," and noting that "[t]he Government had statements from multiple victims, as well as eight videotapes in which Wagner is either engaging in sexual acts with minors or providing minors with alcohol and marijuana and subsequently videotaping them engaged in sexual acts with each other." Wagner v. United States, 377 F. Supp. 2d 505, 510 (D.S.C. 2005). The Fourth Circuit denied Wagner's request for a certificate of appealability and dismissed his appeal. United States v. Wagner, 146 F. App'x 701 (4th

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Cir. 2005). Wagner completed the confinement portion of his sentence in 2013 and began supervised release.

Wagner appears to be trying to relitigate his guilt or innocence on the underlying charges by suing anyone who had anything to do with his conviction or the consequences thereof. Most of his lawsuits against various state and federal officials share common factual claims, including allegations that the search warrant that led to his arrest was based on "perjured" testimony by the victim who first notified police of Wagner's conduct, that this victim was, in fact, his wife and was at least 20 years old at the time that one of the pornographic videos was made, that the investigators and the Assistant United States Attorney working on the case were aware of these facts but conspired to conceal them, that the attorneys appointed to represent Wagner switched sides to support the government, and that a large number of government officials ranging from prison staff to Judge Duffy and President Obama are participating in an ongoing conspiracy to suppress Wagner's First Amendment right to petition the government for redress of his grievances.

To the host of government officials allegedly conspiring against him, Wagner now adds his probation officer (Defendant Simmons), his probation officer's supervisor (Defendant Daugherty), a cyber-crime specialist for the U.S. Probation Office for the District of South Carolina (Defendant Hampton), a website that provides computer monitoring software (Defendant Paycomputermonitoring.com), and a woman whose role cannot be completely determined from Wagner's Complaint (Defendant Spearing).

Wagner filed his Complaint (ECF No. 1) in the instant action on September 5, 2013, and submitted with his Complaint a "Challenge of laws made in violation of the

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U.S. Constitution as presented in USA v. Butler, 297 US 1@62", ECF No. 1-1 (hereinafter "Challenge of Laws"). For the most part, Wagner's allegations rehash the claims he advanced in the prior actions listed above. He alleges that the Defendants in this case, along with others, are "complicit or enabling an ongoing oppression of civil rights" in violation of the United States Constitution and their respective oaths of office. Compl. ECF No. 1, at 1.2 Wagner claims that "[o]n or about February 26th 2002" (a couple of days before Wagner was arrested), Detective William Crews and Special Agent Cynthia McCants conspired to "bear false witness in court" that one of Wagner's victims "was a child" and was Wagner's "step daughter." Id. Detective Crews and Special Agent McCants were not named as defendants in the case at hand, but Wagner has unsuccessfully sued them before for their role in his conviction. See Wagner v. Crews, CIVA 3:05CV1100 GRAJ, 2007 WL 691906 (D.S.C. Mar. 1, 2007). Wagner further contends that since his arrest and conviction "many others including officers of the court have used their authority to facilitate the conspiracy" and "to cover up the truth" that this victim was actually Wagner's wife and was an adult who "planned and facilitated the making of her tapes." Compl. at 1.

According to Wagner, "the commanded protection of the NINTH AMENDMENT protected the unalienable right of [his alleged wife] and her friends from government intrusion," and protected Wagner's right to have "the Truth, the whole Truth, and nothing but the Truth be spoken about me, most especially by my government." Id. He alleges that "[a]ll those named and unnamed are complicit or enabling the facilitation of this ongoing conspiracy with deliberate indifference to the harm and opposition of civil rights," and that "each person named has willfully been complicit or enabled this

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ongoing conspiracy against civil rights . . . to cover up the truth and aid in the facilitation of the Malicious Prosecution that started in February 2002." Id. at 2. Wagner also contends that the United States Probation Office has "oppress[ed]" his "right to a redress of grievance" by oppressing his right to serve his "wife"/victim with divorce papers. Id.; see also Challenge of Laws at 1 (alleging that Defendants Simmons and Daugherty "oppress[ed]" his "attempts [to] locate [the "wife"/victim] to put the Truth, the whole Truth, and nothing but the Truth on the record").3

Wagner's Complaint and Challenge of Laws fail to identify the role of Defendant La Toshia Spearing, but claim that she tried to "compel" Wagner "to say [he] had sexual relations with [his "wife"/victim] when [he] did not," and that she "has been complicit or enabling the facilitation of this conspiracy by availing herself to this lie for monetary gain." Id. at 2, Challenge of Laws at 1.

Finally, Wagner objects...

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