United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
pro se and in forma pauperis, Edward
Griffin Mells brings this 42 U.S.C. § 1983 action
against the attorneys involved in his state prosecution. Doc.
1. The Court granted his request to pursue his case in
forma pauperis (IFP), doc. 4, and he returned the
necessary forms. Docs. 6 & 7. The Court now screens the
Complaint pursuant to 28 U.S.C. § 1915A, which requires
the immediate dismissal of any pro se complaint that
fails to state at least one actionable claim.
construed, Mells contends he was wrongfully arrested.
See doc. 8 at 1-3 (“Affidavit of Truth”
setting forth largely unintelligible allegations that, at
bottom, appear to allege that officers pulled him over, had
him exit the vehicle and placed him in restraints, arrested
him, and towed his vehicle). He also claims that he was
deprived of due process because his preliminary hearing was
waived without his consent. Doc. 1 at 5. The rest of his
allegations are nonsense peppered with fantastical language,
alleging his rights have been violated because (unedited and
The booking officer who caused a molder to fabriate cast
otherwise make a die mold form or pattern. On July 20, 2018
upon my entry the molder, individual who made the form of my
pattern through form of manufacture assemble. You product
making my real property the customer and there by placing an
attachment to my personal property/real property on this day.
Mells Edward Griffin / is not my name, using a artificial
entity connecting my real property/personal property to a
corporate fiction and exercising the rights of a title holder
as a molder in the absence of any agreement which by decite
and fraud this was done by corecion of it being a fact that
the real property be submitted upon entry into the detention
center. My real property was unable to know placed in
conditions of mandatory servitudes in a lockdown unit by a
binding effect of a unknown contract that was not explianed
through clear communication by its construction designed to
decive and do immoral things thereby stripping my common law
rights which are effective forcing me into a unknown contract
which the state is not bound by the passage of law unless it
is named therein or unless the word of the law are so plain
clear and unmistakeable as to leave no doubt as to the
intention of which goes on in reference to a birth
certificate my real property/personal property common law
trade mark was registered and put into vital records and by
its registrey the marks patterns were kept there.
On July 19, 2018 reproduction of counterfeit copy or
colorable initution of my registered marks was formed which
is likely to cause confusion between my personal property and
the corporate ficiticition artificial persons. Which on July
19, 2018 by the flase misleading discription of fact by
misleading acts by the molder of my real property patterns at
the Chatham County Dentention Cneter decived and impose a
connection to Mells, Edward Griffin, to service commercial
which did happen. My real property is still being held for
the corporate fiction and false information given and
counterfeit copys made to hold the fiction attached to my
real property. Which caused injury to my real
Doc. 8 at 3-4.
gobbledygook approaches (if not exceeds) “the level of
the irrational or the wholly incredible.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992). That suggests it
should be dismissed on frivolity grounds. See 28
U.S.C. § 1915A(b)(1). To the extent that it is
comprehensible, it bears all the hallmarks of the
“sovereign citizen” theory that has been
consistently rejected by the federal courts as an utterly
frivolous attempt to avoid the statutes, rules, and
regulations that apply to all litigants, regardless
of how they portray themselves. See, e.g., United States v.
Sterling, 738 F.3d 228, 233 n. 1 (11th Cir. 2013)
(noting that courts routinely reject sovereign citizen legal
theories as “frivolous”) (citing United
States v. Benabe, 654 F.3d 753, 761-67 (7th Cir. 2011)
(recommending that sovereign citizen theories “be
rejected summarily, however they are presented”));
Linge v. State of Georgia Inc., 569 Fed.Appx. 895,
896 (11th Cir. 2014) (rejecting such theories as
“wholly unsubstantial and frivolous”); Roach
v. Arrisi, 2016 WL 8943290 at *2 (M.D. Fla. 2016)
(noting that sovereign citizen theories have not only been
consistently rejected by the courts, but they have been
described as “utterly frivolous, ”
“patently ludicrous, ” and “a waste of . .
. the court's time, which is being paid for by
hard-earned tax dollars”) (cite omitted); United
States v. Alexio, 2015 WL 4069160 at *3 (D. Hawaii
2015). Given the absolute frivolity of Mells' filings,
his case should be DISMISSED. See
28 U.S.C. 1915(e)(2) (requiring dismissal “at any time
if the court determines that, ” inter alia,
the action is frivolous); see also 28 U.S.C. §
1915A(b). It goes without saying that such frivolous
allegations also fail to state a claim upon which relief may
sole comprehensible gravamen of plaintiff's Complaint is
that he was not afforded a preliminary hearing, in violation
of his due process and equal protection rights. Doc. 1 at 5;
see Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53
(1991) (“persons arrested without a warrant must
promptly be brought before a neutral magistrate for a
judicial determination of probable cause.”), cited in
Brown v. Eastern Judicial Circuit of Savannah, 2012
WL 426224 at *1 (S.D. Ga. Feb. 9, 2012) (noting defendants
are “entitled to a prompt judicial determination of
probable cause as a prerequisite to any extended restraint of
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States[.]” West v. Atkins, 487 U.S.
42, 48 (1988) (cites omitted). There is, however, no federal
constitutional right to a preliminary hearing. Harris v.
Estelle, 487 F.2d 1293, 1296 (5th Cir. 1973), cited in
Smith v. Wright, 2009 WL 210494 at *1 (S.D. Ga. Jan.
23, 2009). Thus, any claim that Mells is entitled to damages
(or the dismissal of charges) because he did not receive a
preliminary hearing fails as a matter of law and should be
to the extent he waves at a premature claim of malicious
prosecution, his Complaint should be
DISMISSED for failing to state a claim.
See Wallace v. Kato, 549 U.S. 384, 389 & 390
(2007) (the tort of malicious prosecution “remedies
detention accompanied . . . by wrongful institution
of legal process.”); Wood v. Kesler, 323 F.3d
872, 881 (11th Cir. 2003) (identifying “malicious
prosecution as a violation of the Fourth Amendment and a
viable constitutional tort cognizable under §
1983.”). An essential element of a malicious
prosecution claim is the termination of the criminal
prosecution in the plaintiff's favor. Id. at
882. There can be no allegation, however, that the Chatham
County criminal case has been resolved in Mells' favor.
No acquittal or dismissal of charges has been filed by the
Government; indeed, Mells faces charges of felony obstruction
of an officer, possession of Schedule II substances, and
possession of a firearm, among others. See State v.
Mells, CR18-01759 (Chatham Super. Ct.). Id.;
see also doc. 1 at 6 (asking that the charges
against him be dismissed).
district attorneys are immune from § 1983 liability
where their alleged malfeasance stemmed entirely from their
“function as advocate.” Jones v. Cannon,
174 F.3d 1271, 1281 (11th Cir. 1999) (“[A]bsolute
immunity extends to a prosecutor's ‘acts undertaken
. . . in preparing for the initiation of judicial proceedings
or for trial, and which occur in the course of his role as an
advocate for the State. . . .'”); see Imbler v.
Pachtman, 424 U.S. 409, 431 (1976); Jackson v.
Capraun, 534 Fed.Appx. 854, 859 (11th Cir. 2013)
(prosecutor entitled to absolute immunity for initiating
prosecution even if he did so with malicious intent). And
defense counsel, whether court-appointed or privately
retained, does not qualify as a state actor for purposes of
§ 1983 liability. Polk County v. Dodson, 454
U.S. 312, 318 n. 7 (1981) (“[A] lawyer representing a
client is not, by virtue of being an officer of the court, a
state actor ‘under color of state law' within the
meaning of § 1983.”); Pearson v. Myles,
186 Fed.Appx. 865, 865 (11th Cir. 2006) (court-appointed
defense counsel did not act under color of state law and thus
was not subject to liability under § 1983); Deas v.
Potts, 547 F.2d 800, 800 (4th Cir. 1976) (“A
private attorney who is retained to represent a criminal
defendant is not acting under color of state law.”),
cited in Robinson v. Bernie, 2007 WL 80870 at *1
(S.D. Ga. Jan. 8, 2007). Simply put, even had Mells named a
viable defendant, he cannot state a claim for damages until
his (hypothetical, future) conviction is
the Court sees no apparent basis upon which the deficient
claims could be amended, plaintiff's opportunity to
object to this Report and Recommendation (R&R) within 14
days affords him an opportunity to resuscitate them. He may
submit an Amended Complaint during that period if he believes
it would cure the legal defects discussed above. See
Willis v. Darden, 2012 WL 170163, at * 2 n.3 (S.D. Ga.
Jan. 19, 2012) (citing Smith v. Stanley, 2011 WL
1114503, at * 1 (W.D. Mich. Jan. 19, 2011)). To state a
claim, however, plaintiff must be able to both plead the
requisite elements of a § 1983 claim and
identify a defendant who is not immune from suit.
Mells' Complaint should be DISMISSED as
it is both frivolous and fails to state a claim against any
defendant subject to § 1983 liability. Meanwhile, it is
time for plaintiff to pay his filing fee. His PLRA paperwork
reflects $30.52 in average monthly deposits over the six
month period prior to the date of his Prison Account
Statement. Doc. 6. He therefore owes an initial partial
filing fee of $6.10. See 28 U.S.C. § 1915(b)(1)
(requiring an initial fee assessment “when funds exist,
” under a specific 20 percent formula). Plaintiff's
custodian (or designee) shall remit the $6.10 to the Clerk of
Court and set aside 20 percent of all future deposits to ...