Ronald E. Rice, # 86456-071; and Victory Mills, # 89987-071, Plaintiffs, vs. 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 Does I-XXX, Defendants.



C/A No. 9:00-3937-13AJ



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA



244 F. Supp. 2d 594; 2000 U.S. Dist.



December 27, 2000, Decided

December 28, 2000, Filed



SUBSEQUENT HISTORY: Adopted by, Complaint dismissed at Rice v. NSC, 244 F. Supp. 2d 594, 2001 U.S. Dist. (D.S.C., 2001)



PRIOR HISTORY: United States v. Stevens, 188 F.3d 505, 1999 U.S. App. (4th Cir. S.C., 1999)



DISPOSITION: Magistrate Judge's recommendation to dismiss this case.




COUNSEL: [**1] RONALD E RICE, plaintiff, Pro se, Estill, SC.



VICTORY MILLS, plaintiff, Pro se, Estill, SC.



JUDGES: Robert S. Carr, United States Magistrate Judge.



OPINIONBY: Robert S. Carr



OPINION:

[*598] Report and Recommendation

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, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1992 U.S. LEXIS 2689 (1992), Neitzke v. Williams, 490 U.S. 319, 324-325, 104 L. Ed. 2d 338, 109 S. Ct. 1827, 1989 U.S. LEXIS 2231 (1989); Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 1995 U.S. App. LEXIS 26108 (4th Cir. 1995)(en banc), cert. denied, 516 U.S. 1177, 134 L. Ed. 2d 219, 116 S. Ct. 1273, 1996 U.S. LEXIS 1844 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); [**2] 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, 58 L. Ed. 2d 431, 99 S. Ct. 464 (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, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); and Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). Even under this less stringent standard, the complaint is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure [**3] in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 1990 U.S. App. LEXIS 6120 (4th Cir. 1990). Hence, no useful purpose would be served by having the plaintiff submit the remaining items needed to render this case into "proper form."

The two plaintiffs are bringing suit against various current and former federal officials, and seeks to hold them liable for the drug-smuggling allegedly conducted by operatives of the Central Intelligence Agency (CIA) since the early 1980's. The plaintiffs (or their "jailhouse lawyer") are, presumably, basing this suit on widespread media reports that operatives of the CIA financed covert operations with profits derived from the sale or transportation of illegal drugs into the United States. See, e.g., Alfred W. McCoy, The Politics of Heroin: CIA Complicity in the Global Drug Trade (1991), and Peter Dale Scott [*599] and Jonathan Marshall, Cocaine Politics: Drugs, Armies, and the CIA in Central America (1991), which are cited in Elizabeth M. Iglesias, Out of the Shadow: Marking Intersections In and Between Asian Pacific [**4] American Critical Legal Scholarship and Latina/o Critical Legal Theory, 19 B.C. Third World L. J. 349, 383 n. 88 (Fall, 1998). See also Eric H. Singer, Book Review, 17 Suffolk Transnational L. Rev. 350 (Spring, 1994):

American intelligence operations, particularly covert operations, have an apparent knack for getting out of control and producing unintended consequences. * * * To give a very recent example, last fall it was reported that in 1986, following the fall of Haitian dictator Jean-Claude Duvalier, the Central Intelligence Agency ("CIA") created a Haitian intelligence service aimed at fighting the cocaine trade. * * * Instead of producing intelligence on the drug trade, however, the Haitian intelligence service allegedly distributed drugs in Haiti * * * [and] used its training to accomplish other things in the political arena, such as investigate and torture supporters of Haiti's first democratically-elected leader, Jean Bertrand Aristide, and threaten to kill the local United States Drug Enforcement Administration chief.





17 Suffolk Transnational L. Rev. at 350-351 (footnotes omitted from quotation).

The undersigned is treating this case as [**5] a Bivens action. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983: federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. See Harlow v. Fitzgerald, 457 U.S. 800, 814-820, 73 L. Ed. 2d 396, 102 S. Ct. 2727 & n. 30 (1982). Harlow, which is often cited for the principle of the qualified immunity of state officials for acts within the scope of their employment, was brought against a federal official. In footnote 30 of the opinion in Harlow, the Supreme Court stated that Harlow was applicable to state officials sued under 42 U.S.C. § 1983. In other words, case law involving § 1983 claims is applicable in Bivens actions and vice versa. Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1994 U.S. LEXIS 4274 (1994). [**6]

The United States, its departments, and agencies cannot be sued without its express consent, and express consent is a prerequisite to a suit against the United States. United States v. Mitchell, 463 U.S. 206, 212, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983). The United States has not consented to suit under the Bivens doctrine. The bar of sovereign immunity cannot be avoided by naming officers or employees of the United States as defendants. Gilbert v. Da Grossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Cf. Hawaii v. Gordon, 373 U.S. 57, 58, 10 L. Ed. 2d 191, 83 S. Ct. 1052 (1963).

Even if this case were treated as one brought under the Federal Tort Claims Act (FTCA), the United States would be entitled to summary dismissal on the basis of sovereign immunity. See Myers and Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2nd Cir. 1975). n1 [*600] Additionally, an administrative claim must first be filed with the appropriate federal agency before commencement of a civil action in a district court under the Federal Tort Claims Act. See 28 C.F.R. § 14.2; and the "STANDARD FORM [**7] 95[.]" There is no indication that the plaintiff has filed an administrative claim with the United States Department of Justice.



n1 The Federal Tort Claims Act (FTCA) waives the sovereign immunity of the United States in certain situations. Litigants must strictly comply with the requirements of the FTCA. See 28 U.S.C. § 2675; and United States v. Kubrick, 444 U.S. 111, 117-118, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979).



It is readily apparent that each plaintiff is, at least implicitly, contending that his involvement in illegal activities resulted ultimately from the presence of drugs allegedly smuggled into the United States by CIA operatives. The plaintiffs' belief that the CIA is responsible for their situation(s) is based on an invalid deduction of fact, which is best articulated in the maxim "Post hoc, ergo propter hoc." This maxim is usually translated as "After this, therefore, on account of this." Most federal courts have rejected the validity of that [**8] maxim in determining whether a causal connection exists. See, e.g., the order of the Honorable Charles E. Simons, Jr., United States District Judge, in Orr v. Gardner, 261 F. Supp. 39, 41 n. 1 (D.S.C. 1966)("Post hoc, ergo propter hoc in logic is usually intended as 'the fallacy of arguing from mere temporal sequence to cause and effect relationship.'"); and Loyd v. Bullhead City, 931 F.2d 897 [Table], [reported in full-text format at] 1991 U.S. App. LEXIS 9824, *17, 1991 WESTLAW 70735 (9th Cir., May 6, 1991), where the United States Court of Appeals for the Ninth Circuit commented: "Loyd's argument presents a classic example of the logical fallacy known as post hoc, ergo propter hoc, i.e., that a cause-and-effect relationship can be shown from a mere temporal sequence." Although a district court, when evaluating a pleading under 28 U.S.C. § 1915, must assume that the allegations in the pleading are true, a district court is not required to accept unwarranted deductions of fact. Gersten v. Rundle, 833 F. Supp. 906, 910, 1993 U.S. Dist. LEXIS 13589 (S.D.Fla. 1993).

Since each plaintiff is, in reality, [**9] challenging matters pertaining to his prior criminal case, the complaint is subject to summary dismissal because a right of action has not yet accrued. See Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364, 1994 U.S. LEXIS 4824, 1994 WESTLAW 276683 (1994):

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm whose unlawfulness would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint [**10] must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. * * *





Heck v. Humphrey, supra. See also Woods v. Candela, 47 F.3d 545, 1995 U.S. App. LEXIS 2495 (2nd Cir.) (plaintiff's conviction reversed by state court in 1993; hence, civil rights action timely filed), cert. denied, Candela v. Woods, 516 U.S. 808, 133 L. Ed. 2d 18, 116 S. Ct. 54, 1995 U.S. LEXIS 5329 (1995) ; Treece v. Village of Naperville, 903 F. Supp. 1251 (N.D.Ill. 1995); Seaton v. Kato, 1995 U.S. Dist. LEXIS 2380, *12-*13, [*601] 1995 WESTLAW 88956 (N.D.Ill., February 28, 1995); and Smith v. Holtz, 879 F. Supp. 435, 1995 U.S. Dist. LEXIS 3721 (M.D.Pa. 1995), affirmed, 87 F.3d 108, 1996 U.S. App. LEXIS 15388 (3rd Cir.), cert. denied, Wambaugh v. Smith, 519 U.S. 1041, 136 L. Ed. 2d 536, 117 S. Ct. 611, 1996 U.S. LEXIS 7706 (1996).

Heck v. Humphrey is applicable in civil suits, such as Bivens actions, against federal officials and entities. See Stephenson v. Reno, 28 F.3d 26, 1994 U.S. App. LEXIS 21164 (5th Cir. 1994); [**11] Best v. Kelly, 309 U.S. App. D.C. 51, 39 F.3d 328, 330, 1994 U.S.App. LEXIS 28423 (D.C.Cir. 1994); Williams v. Hill, 878 F. Supp. 269, 1995 U.S. Dist. LEXIS 2979 (D.D.C. 1995)("Because Plaintiff has not established that the validity of his conviction or sentence has been reversed on direct appeal, expunged by executive order, or impugned by the granting of a § 2255 motion or a writ of habeas corpus under § 2241, his Bivens action challenging his conviction and sentence will be DISMISSED as frivolous under 28 U.S.C. § 1915(d)."), affirmed, 316 U.S. App. D.C. 78, 74 F.3d 1339, 1996 U.S. App. LEXIS 1554 (D.C.Cir. 1996); and Zolicoffer v. FBI, 884 F. Supp. 173, 1995 U.S. Dist. LEXIS 5973 (M.D.Pa. 1995). See also Parris v. United States, 45 F.3d 383, 1995 U.S. App. LEXIS 875 (10th Cir.)(Heck v. Humphrey applicable to suits brought under the Federal Tort Claims Act), cert. denied, 514 U.S. 1120, 131 L. Ed. 2d 871, 115 S. Ct. 1984, 1995 U.S. LEXIS 3416 (1995); and Williams v. Hill, supra (Heck v. Humphrey applicable to civil [**12] "RICO" action filed by a federal prisoner against federal prosecutors and other officials).

The holding in Heck v. Humphrey is retroactive. See Hooper v. Anderson, 50 F.3d 14, [reported in full-text format at] 1995 U.S. App. LEXIS 676, *4 n. 1, 1995 WESTLAW 11082 (9th Cir., January 10, 1995) (opinion on rehearing by panel; Heck v. Humphrey applies retroactively), replacing unpublished opinion reported in Hooper v. Anderson, 37 F.3d 1505, [originally reported in full-text format at] 1994 U.S. App. LEXIS 28378 (9th Cir., October 6, 1994); and Smith v. Holtz, supra (plaintiff's Rule 60(b) motion granted because of decision in Heck v. Humphrey). Hence, even though the two plaintiffs were convicted prior to the issuance of the opinion in Heck v. Humphrey, Heck v. Humphrey bars the above-captioned case (Civil Action No. 9:00-3937-13AJ).

In any event, there have been no favorable terminations in the respective criminal cases for the two plaintiffs. The lead plaintiff, Ronald Rice, was convicted in United States v. Ronald Eugene Rice, Criminal No. 7:90-310-2, pursuant to a jury's verdict. On February 8, 1991, the Honorable G. Ross Anderson, Jr., United States District [**13] Judge, sentenced Ronald Rice to 480 months in prison on Count 2 (possession of crack cocaine with intent to distribute); life imprisonment on Count 1 (conspiracy to possession with intent to distribute crack cocaine); and 240 months on Count 3 (maintaining residence for distributing cocaine) and Count 4 (aiding and abetting). Ronald Rice's conviction and sentence were upheld on appeal in United States v. Rice, 976 F.2d 728, 1992 U.S. App. LEXIS 24888, 1992 WESTLAW 240686 (4th Cir., September 29, 1992), cert. denied, United States v. Stevens, 507 U.S. 1056, 123 L. Ed. 2d 662, 113 S. Ct. 1958, 1993 U.S. LEXIS 3100 (1993).

On June 25, 1996, Judge Anderson, pursuant to a post-judgment motion, reduced Ronald Rice's term of imprisonment to 324 months. A copy of the docket sheet in Criminal No. 7:90-310-02 is on the left side of the case folder in the above-captioned case.

Plaintiff Mills was also convicted in his underlying criminal case pursuant to a guilty plea. See United States v. Victory Mills, Criminal No. [*602] 7:93-279-30. Plaintiff Mills is serving a 168-month sentence for conspiracy to possess with intent to distribute cocaine base. [**14] Plaintiff Mills did not file a direct appeal in Criminal No. 7:93-279-30, and has not filed a Section 2255 petition with respect to his conviction. A copy of the docket sheet in Criminal No. 7:93-279-30 is on the left side of the case folder.

This court may take judicial notice of the two plaintiffs' respective criminal cases. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970).

In any event, many of the defendants in the above-captioned case are immune from suit. Prosecutors, including the Attorney General of the United States and her predecessors in office, have absolute immunity for activities in or connected with judicial proceedings, such as a criminal trial, bond hearings, bond hearings, bail hearings, grand jury proceedings, and pre-trial "motions" hearings. See Buckley v. Fitzsimmons, 509 U.S. 259, 125 L. Ed. 2d 209, 113 S. Ct. 2606, 1993 U.S. LEXIS 4400 (1993); and Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547, 561-562 & n. 6, 111 S. Ct. 1934, 1991 U.S. LEXIS 3018 (1991) . Moreover, prosecutorial immunity will extend to the direct appeal and the post-conviction (§ 2255) case. [**15] See Bruce v. Wade, 537 F.2d 850, 852 (5th Cir. 1976), where the Court concluded that an attorney representing a government in a habeas corpus or post-conviction case has absolute prosecutorial immunity; and Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979)(prosecutorial immunity extends to appeals). Cf. Lowe v. Letsinger, 772 F.2d 308, 314-315 & n. 7 (7th Cir. 1985); and Houston v. Partee, 978 F.2d 362, 365-369 & nn. 3-4, 1992 U.S. App. LEXIS 27825 (7th Cir. 1992), cert. denied, Partee v. Houston, 507 U.S. 1005, 123 L. Ed. 2d 269, 113 S. Ct. 1647, 1993 U.S. LEXIS 2453 (1993).

The current President of the United States and the former Presidents are immune from suits concerning their official acts. Idrogo v. U.S. Army, 18 F. Supp. 2d 25, 1998 U.S. Dist. LEXIS 14873 (D.D.C. 1998). Secondly, under the "political question" doctrine, the United States District Court for the District of South Carolina cannot address the plaintiff's "CIA-related" claims because they primarily relate to foreign policy matters of the United States. Goldwater v. Carter, 444 U.S. 996, 1002-1006, 62 L. Ed. 2d 428, 100 S. Ct. 533 (1979) [**16] (plurality opinion by Justice Rehnquist). The "political question" doctrine discountenances judicial interference with certain types of cases involving the other branches of the Government of the United States. Baker v. Carr, 369 U.S. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). In short, such claims presented by the plaintiff involve the authority of the President and other federal executive officials in the conduct of foreign relations. Goldwater v. Carter, supra, 444 U.S. at 1002-1003. See also Dellums v. Bush, 752 F. Supp. 1141, 1990 U.S. Dist. LEXIS 16611 (D.D.C. 1990). See also Eckert International v. Government of the Sovereign Democratic Republic of Fiji, 834 F. Supp. 167, 171, 1993 U.S. Dist. LEXIS 13604 (E.D.Va. 1993)(purpose of "political question" doctrine is "to prevent judicial pronouncements that would disrupt this country's foreign relations"), affirmed, Eckert International v. Government of the Sovereign Democratic Republic of Fiji, 32 F.3d 77, 1994 U.S. App. LEXIS 20704 (4th Cir. 1994). Cf. Flast v. Cohen, 392 U.S. 83, 97, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968) [**17] (federal judicial power usually limited to disputes capable of being resolved through judicial process); and FCC v. Pacifica Foundation, 438 U.S. 726, 735, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978)("Federal courts have never been empowered to issue advisory opinions.").

The State of Arkansas is immune from suit. The Eleventh Amendment to the United States Constitution divests this court of jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts, such as a state agency or department. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend [*603] to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.





See Kimel v. Florida Board of Regents, 528 U.S. 62, 68 U.S.L.W. 4016, 145 L. Ed. 2d 522, 120 S. Ct. 631, 2000 U.S. LEXIS 498 (2000)(Congress exceeded its authority in making Age Discrimination in Employment Act [ADEA] applicable to States); Alden v. Maine, 527 U.S. 706, 67 U.S.L.W. 4601, 144 L. Ed. 2d 636, 119 S. Ct. 2240, 1999 U.S. LEXIS 4374, 1999 WESTLAW 412617 (1999) [**18] (Congress does not have the power under Article I to abrogate an unconsenting State's sovereign immunity to private suit for damages in state court, even if the cause of action aries under federal law); College Savings Bank v. Florida Prepaid Education Expense Board, 67 U.S.L.W. 4590, 144 L. Ed. 2d 605, 119 S. Ct. 2219, 1999 U.S. LEXIS 4375, 1999 WESTLAW 412639 (1999)(overruling the constructive waiver doctrine of Parden v. Terminal Railway, 377 U.S. 184, 12 L. Ed. 2d 233, 84 S. Ct. 1207 (1964); held: Trademark Remedy Clarification Act does not abrogate state sovereign immunity to suit in federal court because it was not enacted pursuant to Congress' enforcement power under Section 5 of the Fourteenth Amendment); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 67 U.S.L.W. 4580, 144 L. Ed. 2d 575, 119 S. Ct. 2199 U.S. LEXIS 4376, 1999 WESTLAW 412723 (1999)(Patent and Plant Variety Protection Remedy Clarification Act does not abrogate state sovereign immunity to suit in federal court because it is not appropriate remedial or preventive legislation under Section 5 of the Fourteenth Amendment [**19] ); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 134 L. Ed. 2d 252, 116 S. Ct. 1114, 1996 U.S. LEXIS 2165 (1996)(invalidating Congressional attempt, under Indian Commerce Clause, to abrogate States' Eleventh Amendment immunity); Alabama v. Pugh, 438 U.S. 781, 782, & nn. 1-2, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978); Will v. Michigan Department of State Police, 491 U.S. 58, 61-71, 105 L. Ed. 2d 45, 109 S. Ct. 2304, 1989 U.S. LEXIS 2975 (1989); Chittister v. Dept of Community and Economic Development, 226 F.3d 223, 2000 U.S. App. LEXIS 22229 (3rd Cir. 2000)(applying Kimel v. Florida Board of Regents: State may not be sued under Family and Medical Leave Act [FMLA]); Bellamy v. Borders, 727 F. Supp. 247, 248-250 & nn. 2-3, 1989 U.S. Dist. LEXIS 15792 (D.S.C. 1989); Coffin v. South Carolina Department of Social Services, 562 F. Supp. 579, 583-585 (D.S.C. 1983); Belcher v. South Carolina Board of Corrections, 460 F. Supp. 805, 808-809 (D.S.C. 1978); and Simmons v. South Carolina State Highway Dept., 195 F. Supp. 516, 517 (E.D.S.C. 1961). [**20] See also Harter v. Vernon, 101 F.3d 334, 338-339, 1996 U.S. App. LEXIS 30258 (4th Cir. 1996), cert. denied, Vernon v. Harter, 521 U.S. 1120, 138 L. Ed. 2d 1014, 117 S. Ct. 2511, 1997 U.S. LEXIS 4081 (1997); and Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984)(although express language of Eleventh Amendment only forbids suits by citizens of other States against a State, Eleventh Amendment bars suits against a State filed by its own citizens). Cf. Suarez Corporation Industries v. McGraw, 125 F.3d 222, 1997 U.S. App. LEXIS 23839 (4th Cir. 1997); City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157, 1997 U.S. LEXIS 4035 (1997)(Congress exceeded its authority in enacting Religious Freedom Restoration Act of 1993); and Printz v. United States, 521 U.S. 898, 138 L. Ed. 2d 914, 117 S. Ct. 2365, 1997 U.S. LEXIS 4044 (1997)(invalidating Brady Handgun Violence Act's provision that States conduct background checks on handgun purchasers). Cf. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 68 U.S.L.W. 4399, 146 L. Ed. 2d 836, 120 S. Ct. 1858, 2000 U.S. LEXIS 3428 (U.S., May 22, 2000) [**21] (a State is not a person for purposes of qui tam liability); and Principality of Monaco v. State of Mississippi, 292 U.S. 313, 78 L. Ed. 1282, 54 S. Ct. 745 (1934)(State immune from suit by foreign country), which is cited in Barry v. [*604] Fordice, 814 F. Supp. 511, 517, 1992 U.S. Dist. LEXIS 20893 (S.D.Miss. 1992)("The plaintiffs argue that the defendants' reliance on Monaco is misplaced. Unlike the instant litigation, in Monaco, the plaintiffs in Monaco brought an original action in the United States Supreme Court and named the State of Mississippi as a defendant. This distinction is irrelevant as to the issues before this court. Nothing in the Monaco opinion suggests that a different result would have occurred if the action had been filed originally in a district court rather than the Supreme Court. On the contrary, the Eleventh Amendment principles set forth in Monaco have been expressly relied upon in actions which were originally brought in federal district courts."), affirmed, 8 F.3d 1, 1993 U.S. App. LEXIS 29115 (5th Cir. 1993). Cf. Pennhurst State School & Hospital v. Halderman, supra, 465 U.S. at 121 [**22] ("Neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.").

Recommendation

The Prison Litigation Reform Act authorizes a district court to dismiss a case, irrespective of whether a filing fee is paid, if the defendant is immune from suit. See "new" 28 U.S.C. § 1915A. Since the current President of the United States, the former Presidents of the United States, the current Attorney General of the United States, and the former Attorney Generals of the United States are immune from suit, 28 U.S.C. § 1915A(b)(2) is applicable. Hence, I recommend that the above-captioned case be dismissed without prejudice and be deemed a "strike" for purposes of the "three strikes" rule of 28 U.S.C. § 1915(g) as to both plaintiffs. n2 See Denton v. Hernandez, supra; Neitzke v. Williams, supra; Haines v. Kerner, supra; Brown v. Briscoe, 998 F.2d 201, 202-204 & n. * (4th Cir. 1993), replacing unpublished opinion originally tabled at 993 F.2d 1535 (4th Cir. 1993); Boyce v. Alizaduh, supra; [**23] Todd v. Baskerville, supra, 712 F.2d at 74; 28 U.S.C. § 1915(e)(2)(B) [essentially a redesignation of "old" 1915(d)]; and "new" 28 U.S.C. § 1915A [as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal]. Summary dismissal of the above-captioned case makes it unnecessary to address matters relating to a filing fee. n3



n2 See also 28 U.S.C. § 1915(e)(2) and (g). These provisions require an inmate to pay the filing fee for his or her case in advance after he or she has had three cases "dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." Id. As discussed above under Heck v. Humphrey, supra, a prisoner must show that his or her conviction or sentence has been reversed or vacated before he or she can recover in tort for the unlawful conviction or sentence. Where, as here, the conviction or sentence has not been overturned, the inmate's constitutional tort action under § 1983 or the Bivens doctrine must be dismissed. Several courts have held that a dismissal under Heck constitutes a "strike" under 28 U.S.C. § 1915(e)(2) and (g). See Sandles v. Randa, 945 F. Supp. 169, 1996 U.S. Dist. LEXIS 17810 (E.D. Wis. 1996); Sanders v. DeTella, 1997 U.S. Dist. LEXIS 2838, 1997 WESTLAW 126866 (N.D.Ill., March 13, 1997)(unpublished); and Grant v. Sotelo, 1998 U.S. Dist. LEXIS 16798, 1998 WESTLAW 740826 (N.D.Tex., October 19, 1998)(unpublished). See also Adepegba v. Hammons, 103 F.3d 383, 384, 1996 U.S. App. LEXIS 33974 (5th Cir. 1996)(noting that district court dismissed a claim as frivolous under Heck and declining to address the propriety of the district court's dismissal because plaintiff had not exhausted his appeal) and cf. Okoro v. Bohman, 164 F.3d 1059, 1061-1064, 1999 U.S. App. LEXIS 185 (7th Cir. 1999). Thus, the undersigned concludes that, even aside from the doctrines of Presidential immunity and prosecutorial immunity, this action is frivolous under 28 U.S.C. § 1915(e)(2) and (g) and should be deemed a "strike" under this statute.

[**24]





n3 Part III(C) of the General Order issued in Misc. No. 4:96-MC38-2 (DSC, June 20, 1996) allows this court to dismiss a case under "new" 28 U.S.C. § 1915A:

(C) If the Magistrate Judge determines that the case is subject to dismissal under "new" 28 U.S.C. § 1915A or is subject to dismissal for lack of subject-matter jurisdiction, it is not necessary for the Magistrate Judge or a District Judge to consider issues relating to the filing fee(s).





[*605]

Although the plaintiffs are convicted drug offenders, not tax protesters, the rationale of the tax protester cases indicates that United States District Courts must be vigilant in preventing the filing of frivolous claims. See United States v. Reeves, 782 F.2d 1323 (5th Cir.), cert. denied, Reeves v. United States, 479 U.S. 837, 93 L. Ed. 2d 79, 107 S. Ct. 136 (1986). In a case filed by a prisoner at FCI-Jesup, Brinston Wilson v. Henry M. Herlong, Jr., United States District Judge; David C. Stephens, Assistant United States Attorney; Scott Peterman, ATF [**25] Agent; William J. Clinton; President; George Bush, Ex-President; Ronald Reagan, Ex-President; Al Gore, Vice-President; Dan Quayle, Ex-Vice-President; Spiro T. Agnew, Ex-Vice-President; Newton Gingrich, Speaker of the House; Pat Buchanan, Presidential Candidate; Bob Dole, "U. S. Senator[;]" Strom Thurmond, Senator; Jesse Helms, Senator; Ernest Hollings, Senator; Arthur Ravenel, Jr., "U.S. Representative[;]" Floyd Spence, Representative; Bob Inglis, Representative; Butler Derrick, Representative; John Spratt, Representative; Tom Lantos, Representative; Peter T. King, Representative; J. C. Watts, Representative; Gary Watts, Representative; Gary Franks, Representative; William Beasley, Governor of South Carolina; Carroll Campbell, Ex-Governor of South Carolina; Richard Riley, Ex-Governor of South Carolina; James Edwards, Ex-Governor of South Carolina; Janet Reno, "U.S. Attorney General[;]" William Barr, Ex-Attorney General; Richard Thornburg, Ex-Attorney General; Edwin Meese, Ex-Attorney General; William French Smith, Ex-Attorney General; Griffin Bell, Ex-Attorney General; Edward Levi, Ex-Attorney General; William B. Saxon, Ex-Attorney General; Richard Kleindienst, Ex-Attorney General; [**26] John Mitchell, Ex-Attorney General; Eleanor Acheson, Assistant U.S. Attorney General; Philip Heyman, Deputy U.S. Attorney General; Jamie Groelick, Ex-Deputy U.S. Attorney General; Webster H. Hubble, Ex-Deputy U.S. Attorney General; Louis Freech, Director of FBI; William Steele Sessions, Ex-Director of FBI; William Casey, "Ex-Director/FBI[;]" Sam J. Ervin, Chief Judge of USCA, 4th Circuit; Donald Russell, Judge; Preston Strom, Jr., United States Attorney; Albert Q. Taylor, Attorney; James W. Duckett, Chief Probation Officer; James W. Brown, Supervisor of U.S. Probation Office; R. Stephens Anders, U.S. Probation Officer; Charlie Flowers, Chief of Belmont City Police; William Jolly, Former Sheriff of Union County; Russel Rourke, Chief of Union City Police; William F. Gault, Officer of Union City Police; Earl Gilliam, Officer of Union City Police; and Torrence Watson, of the Belmont City Police, Civil Action No. 6:96-2340-13AK, a federal prisoner sought to file liens against various federal officials because of his federal conviction in a criminal case. Many of the defendants had no connection whatsoever with that federal prisoner's criminal case. In Civil Action No. 6:96-2340-13AK, [**27] the Honorable William M. Catoe, United States Magistrate Judge, recommended summary dismissal of the liens purportedly filed by the federal prisoner against federal officials. Magistrate Judge Catoe also recommended that the federal prisoner's good time credits be revoked because of the attempt to file liens. This court [*606] may take judicial notice of Civil Action No. 6:96-2340-13AK. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970).

It is also readily apparent that the above-captioned case is malicious and intended to harass. See Section 809 of the Prison Litigation Reform Act, which is codified at the "second" 28 U.S.C. § 1932:

In any civil action brought by an adult convicted of a crime and confined in a Federal correctional facility, the court may order the revocation of such earned good time credit under section 3624(b) of title 18, United States Code, that has not yet vested, if, on its own motion or the motion of any party, the court finds that--





(1) the claim was filed for a malicious purpose;



(2) the claim was filed solely to harass the party against which it was filed; or



(3) [**28] the claimant testifies falsely or otherwise knowingly presents false evidence or information to the court.





28 U.S.C. § 1932 ("second"). n4 Hence, it is also recommended that the District Court, pursuant to the Section 809 of the Prison Litigation Reform Act, revoke each plaintiff's good time credits (if any) that have not yet vested in the Federal Bureau of Prisons. See the final order, which was filed on September 30, 1996, of the Honorable G. Ross Anderson, Jr., United States District Judge, in Brinston Wilson v. Henry M. Herlong, Jr., et al., Civil Action No. 6:96-2340-13AK, wherein Brinston Wilson's non-vested good time was revoked. See also the Order issued in Darrell W. Samuel v. William J. Clinton, et al., Civil Action No. 3:99-2950-19BC, by the Honorable Dennis W. Shedd, United States District Judge, on November 30, 1999. Judge Shedd's Order in Civil Action No. 3:99-2950-19BC was affirmed by the Court of Appeals in Samuel v. Clinton, 217 F.3d 840, [reported in full-text format at] 2000 U.S. App. LEXIS 14327, 2000 WESTLAW 791161 (4th Cir., June 20, 2000)(affirming revocation of federal prisoner's non-vested good time credits). [**29] If the District Court accepts this recommendation to revoke each plaintiff's good time credit(s), it is recommended that the District Court direct the United States Attorney for the District of South Carolina to notify the Federal Bureau of Prisons that each plaintiff's non-vested good time credits have been revoked. Each plaintiff's attention is directed to the notice on the next page.



n4 As the apparent result of a drafting error in the Congress, there are two statutes codified at 28 U.S.C. § 1932: the first concerns multi-district litigation and the second concerns revocation of good time credits for federal prisoners.



Respectfully submitted,



Charleston, South Carolina

(Date) 12/27/2000

Robert S. Carr

United States Magistrate Judge

Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So

Each plaintiff is hereby notified that any objections to the attached Report and Recommendation [**30] (or Order and Recommendation) must be filed within ten (10) days of the date of its filing. 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed. R. Civ. P. 6. Based thereon, this Report and Recommendation, any objections thereto, and the case file will be delivered to a United States District Judge fourteen (14) days after this Report and Recommendation is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 & n. 3, 1992 U.S. Dist. LEXIS 6243 (S.D.N.Y. 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271, 46 L. Ed. 2d 483, 96 S. Ct. 549 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410, 1993 U.S. Dist. LEXIS 3411 (D.S.C. 1993).

During the ten-day period, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, [**31] if he or she wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44, 1992 U.S. Dist. LEXIS) 8250 (D.S.C. 1992); and Oliverson v. West Valley City, 875 F. Supp. 1465, 1467, 1995 U.S. Dist. LEXIS 776 (D. Utah 1995) . Failure to file specific, written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208, 81 L. Ed. 2d 352, 104 S. Ct. 2395 (1984); and Wright v. Collins, 766 F.2d 841, 845-847 & nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that [**32] party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509, 1991 U.S. App. LEXIS 8487 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.)(party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009, 88 L. Ed. 2d 466, 106 S. Ct. 535 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient:

A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial [**33] resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error.





Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:





Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.





See also Branch v. Martin, 886 F.2d 1043, 1046, 1989 U.S. App. LEXIS 15084 (8th Cir. 1989)("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984)("plaintiff's objections lacked the specificity to trigger de novo [**34] review"). This notice, hereby, apprises each plaintiff of the consequences of a failure to file specific, written objections. See Wright v. Collins, supra; and Small v. Secretary of HHS, 892 F.2d 15, 16, 1989 U.S. App. LEXIS 19302 (2nd Cir. 1989). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections addressed as follows:

Larry W. Propes, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402