8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`DISTRICT OF SOUTH CAROLINA
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`) C/A No. 8:08-4137-GRA-WMC
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` Report and Recommendation
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`)))))))))
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`George C. McCullough,
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`Plaintiff,
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`vs.
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`United States of America;
`George W. Bush Jr.;
`Richard B. Cheney;
`Nancy Pelosi;
`John G. Roberts Jr.;
`and et al U.S. persons thereof,
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`Defendants.
`____________________________________________
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`This is a civil action filed pro se. Plaintiff has filed an Application to Proceed In
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`Forma Pauperis in this case. (Entry 4). The case is presently before the undersigned
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`Magistrate Judge for report and recommendation following pre-service review. See 28
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`U.S.C. § 1915(e)(2)(B).
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`Under established local procedure in this judicial district, a careful review has been
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`made of the pro se complaint herein pursuant to the procedural provisions of 28 U.S.C.
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`§ 1915. The review has been conducted in light of the following precedents: Denton v.
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`Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v.
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`Kerner, 404 U.S. 519, 520-21 (1972); Nasim v. Warden, Maryland House of Correction,
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`64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v.
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`Alizaduh, 595 F.2d 948 (4th Cir. 1979).
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`This Court is required to construe pro se complaints liberally. Such pro se
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`complaints are held to a less stringent standard than those drafted by attorneys, Gordon
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 2 of 9
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`v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with
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`liberally construing a complaint filed by a pro se litigant to allow the development of a
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`potentially meritorious case. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe,
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`449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is
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`evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v.
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`City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, the requirement of liberal
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`construction does not mean that the court can ignore a clear failure in the pleading to
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`allege facts which set forth a claim cognizable in a federal district court. See Weller v.
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`Department of Social Servs., 901 F.2d 387 (4th Cir. 1990). Even under this less stringent
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`standard, the complaint filed in this case is subject to summary dismissal pursuant to 28
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`U.S.C. § 1915(e)(2)(B).
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`Background
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`Plaintiff claims that an unlawful medical procedure was performed on him sometime
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`between March 17, 1978, and April 1, 1978. Plaintiff states “preliminary discovery of
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`injuries were made around April 2, 1978.” See Plaintiff’s Complaint, page 8. Plaintiff
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`alleges that, after being rendered unconscious with anesthetic drugs, a wireless telemetric
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`device was surgically injected into Plaintiff’s brain. Plaintiff also claims that portions of his
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`ribs were fused, and derogatory surgical scaring and occult-like graphic depictions in the
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`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 (10 Cir. 1999), or construct Plaintiff's legal arguments for him,
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`Small v. Endicott, 998 F.2d 411 (7 Cir. 1993), or “conjure up questions never squarely presented”
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`to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4 Cir. 1985).
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 3 of 9
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`form of branding marks, tattoos, and pockmarks were physically inflicted on Plaintiff’s
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`anatomy during the procedure. Plaintiff states he has suffered psychological and physical
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`pain as a result of his injuries. Plaintiff further claims that his thoughts have been publicly
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`disclosed, broadcasted, and transmitted via the surgically injected telemetric device, thus
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`causing damage to Plaintiff’s reputation.
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`Plaintiff states that the “United States, under color of law, has in its actions willfully
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`subjected me to the deprivation of certain rights . . . [d]isabling bodily injuries and
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`psychological trauma . . . .” See Plaintiff’s Complaint, page 8. Plaintiff further complains
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`that a previous lawsuit he filed with this Court was dismissed, “under the auspices of Chief
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`Justice John G. Roberts.” Id. Plaintiff claims Defendant George W. Bush, Jr., as acting
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`President of the United States, aided and gave authorization for the transmission of
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`information from Plaintiff’s telemetric device. See Plaintiff’s Complaint, page 9. Finally,
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`Plaintiff alleges that “President George W. Bush Jr. as acting executive officer, House of
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`Representatives members under auspices of Nancy Pelosi, and Senate members of the
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`legislator under the auspices of Richard B. Cheney frequently occasion access to these
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`broadcast forums to both harass and persecute me.” Id. at page 10. Plaintiff seeks
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`damages and injunctive relief.
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`Discussion
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`As an initial matter, the Plaintiff has previously brought a claim in this District Court
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`seeking recovery for alleged federal constitutional or statutory violations under 42 U.S.C.
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`3
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 4 of 9
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`§ 1983 (referred to as the Bivens Doctrine where federal officials/employees are involved).2
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`In fact, Plaintiff’s present complaint states, “[t]he cause of action was first presented before
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`the United States District Court of South Carolina on July 26, 2007 . . . it was dismissed
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`October 11, 2007 without prejudice on further action. The claim is again filed in good faith
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`. . . .” See Plaintiffs Complaint, Section III, Previous Lawsuits.
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`Plaintiff’s prior claim involved one of the same Defendants named in the present
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`action, the United States of America, and asserted similar allegations. See George C.
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`McCullough v. United States of America, Civil Action No. (C/A No.) 8:07-2104-GRA-WMC
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`(SCDC)(dismissed without prejudice on October 11, 2007). This court takes judicial
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`notice of C/A No. 8:07-2104-GRA-WMC . A district court may take judicial notice of
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`materials in the court’s own files from prior proceedings. See United States v. Parker, 956
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`F.2d 169, 171 (8th Cir. 1992)(the district court had the right to take judicial notice of a prior
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`related proceeding). See also Fletcher v. Bryan, 175 F.2d 716 (4 Cir. 1949).
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`As in Plaintiff’s prior lawsuit, the current action names a party, The Unites States of
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`America, which is not a proper Defendant in an action under 42 U.S.C § 1983/Bivens.
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`Under the well-established legal doctrine of sovereign immunity, the United States, its
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` See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,
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`397 (1971). In Bivens, 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. Harlow v. Fitzger-
`ald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions
`and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472
`U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988).
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` Plaintiff appealed the Court’s dismissal of C/A No. 8:07-2104-GRA-WMC to the United
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`States Court of Appeals for the Fourth Circuit, which affirmed the Court’s decision on May 20,
`2008.
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 5 of 9
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`departments, and agencies cannot be sued without its express consent. See U. S. v.
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`Mitchell, 463 U.S. 206, 212 (1983). The United States has not consented to a Bivens suit
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`against it or against one of its agencies. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994);
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`Gilbert v. Da Grossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Thus, no viable Bivens claim
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`can be stated against the United States of America.
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`Additionally, Plaintiff has named other Defendants in the present action who are
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`immune from suit under §1983/Bivens. The United States Supreme Court has recognized
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`the defense of “absolute immunity” for “officials whose special functions or constitutional
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`status requires complete protection from suit.” Harlow v. Fitzgerald, 457 U.S. 800, 807
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`(1982). Included in this list are “legislators, in their legislative functions . . . judges, in their
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`judicial functions . . . and the President of the United States.” Id. (citations omitted). See
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`also Hafer v. Melo, 502 U.S. 21, 29 (1991). In the instant complaint, Plaintiff names the
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`following Defendants: Chief Justice of the United States Supreme Court, John G. Roberts,
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`Jr.; President George W. Bush, Jr.; and Speaker of the United States House of
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`Representatives, Nancy Pelosi. As Plaintiff names these Defendants for actions taken in
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`their official capacities, Defendants Roberts, Bush, and Pelosi are protected by absolute
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`immunity and are entitled to dismissal from this suit. See also Berkley v. Common Council
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`of City of Charleston, 63 F.3d 295, 300-301 (4 Cir. 1995)(recognizing long tradition of
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`granting legislators at all levels of government a broad immunity from suits based upon
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` While case law does not appear to extend the protection of absolute immunity to the Vice
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`President, Plaintiff named Defendant Richard B. Cheney is his role as President of the Senate.
`Therefore, it is possible that Defendant Cheney may be protected by legislative immunity, or in the
`alternative, be entitled to qualified immunity. However, as the complaint is subject to dismissal on
`other grounds, a detailed discussion regarding the possible scope of former Vice President
`Cheney’s immunity is unnecessary.
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 6 of 9
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`legitimate legislative activity); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985)("It has long
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`been settled that a judge is absolutely immune from a claim for damages arising out of his
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`judicial actions").
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`Plaintiff also lists, in the body of his complaint, several “John Doe” type names, and
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`the names of two “non-government employed” private medical doctors, Dr. Jane Reister
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`and Dr. Eric Bang. See Plaintiff’s Complaint, page 11. As these individuals were not listed
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`in the complaint’s caption as defendants, and no service documents were provided for
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`these individuals, it does not appear that Plaintiff intended them to be included as
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`defendants in this case. In any event, a suit against private individuals or “non-government
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`employees,” cannot be raised under § 1983/Bivens. To state a claim under § 1983/Bivens,
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`a plaintiff must allege two essential elements: (1) that a right secured by the Constitution
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`or laws of the United States was violated, and (2) that the alleged violation was committed
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`by a person acting under the color of state or federal law. West v. Atkins, 487 U.S. 42, 48
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`(1988). In the present action, Plaintiff does not state that the private physicians acted
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`under color of federal law. Additionally, all of the “John Doe” type individuals appear to be
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`either “independent instrumentalities” and/or “non-government employees.” Therefore
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`these individuals would not be amenable to suit under § 1983/Bivens.
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`Further, as stated in the Report and Recommendation prepared for Plaintiff’s
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`previous case, C/A No. 8:07-2104-GRA-WMC , it appears from the face of the complaint
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`that any potential Bivens claim that Plaintiff might have, based on his nearly thirty year-old
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`personal injuries, would be barred by the applicable three-year statute of limitations. See
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`Chin v. Bowen, 833 F.2d 21 (2d Cir. 1987) (applying state statute of limitations for personal
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 7 of 9
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`injury action to Bivens claim). See also S.C. Code Ann. § 15-3-530(5); Simmons v. S. C.
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`State Ports Auth., 694 F.2d 64 (4th Cir. 1982)(citing to previous version of statute). Since
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`Plaintiff specifically states that he has known about his injuries since April of 1978, his
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`current Bivens claim against the allegedly responsible federal officials/employees is not
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`timely filed.
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`Furthermore, to the extent that Plaintiff’s complaint can be construed as an attempt
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`to state a Federal Tort Claims Act (FTCA) claim against the United States based on
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`negligence of the named Defendants, the complaint is also subject to summary dismissal.
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`Although the “United States” is the proper Defendant in a FTCA case, because the United
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`States has waived its sovereign immunity in the limited area of negligence-based personal
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`injury action, an injured party may sue the United States for damages allegedly caused by
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`a federal agency, officer, or employee only in specific and limited circumstances. Such
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`specific and limited circumstances are not shown under this complaint because there is no
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`indication that Plaintiff complied with FTCA pre-suit requirements in a timely fashion prior
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`to filing this lawsuit. See Myers & Myers, Inc. v. U. S. Postal Serv., 527 F.2d 1252, 1256
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`(2d Cir. 1975).
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`For example, within two years of the discovery of the subject personal injuries, an
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`administrative claim must be filed on the “Standard Form 95" with the appropriate federal
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`agency before commencement of a civil action in a district court under the FTCA. See 28
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`U.S.C. § 2401 (administrative claim must be filed “within 2 years after such claim accrues”);
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` See 28 U.S.C.§ 1346, 2674. The FTCA waives the sovereign immunity of the United
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`States in certain situations. Litigants must strictly comply with the requirements of the FTCA. See
`28 U.S.C. § 2675; U. S. v. Kubrick, 444 U.S. 111, 117-18 (1979).
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 8 of 9
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`28 C.F.R. § 14.2 (references standard form 95 and methods of presentation of claim to
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`applicable agency). Also, the burden is on the plaintiff in a FTCA case to prove that he/she
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`completed all the conditions precedent to filing a lawsuit. Kielwien v. U. S., 540 F.2d 676,
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`679 (4th Cir. 1976). As previously stated, Plaintiff’s complaint makes no mention of the
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`filing of any timely and statutorily proper administrative claim based on his allegations of
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`personal injuries with any federal agency prior to the filing of this lawsuit. Finally, because
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`there do not appear to be any other potentially viable federal legal claims evident from the
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`face of the complaint, this entire case should be summarily dismissed.
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`RECOMMENDATION
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`Accordingly, it is recommended that the District Court dismiss the complaint in this
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`case without prejudice and without issuance and service of process. See United Mine
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`Workers v. Gibbs, 383 U.S. 715 (1966). See also Neitzke v. Williams, 490 U.S. 319, 324-
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`25 (1989); Haines v. Kerner, 404 U.S. 519 (1972). Plaintiff's attention is directed to the
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`important notice on the next page.
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`February 5, 2009
`Greenville, South Carolina
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`8:08-cv-04137-GRA Date Filed 02/05/09 Entry Number 12 Page 9 of 9
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`Notice of Right to File Objections to Report and Recommendation
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`The parties are advised that they may file specific written objections to this Report
`and Recommendation with the District Court Judge. Objections must specifically identify
`the portions of the Report and Recommendation to which objections are made and the
`basis for such objections. In the absence of a timely filed objection, a district court judge
`need not conduct a de novo review, but instead must “only satisfy itself that there is no
`clear error on the face of the record in order to accept the recommendation.” Diamond v.
`Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4 Cir. 2005).
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`Specific written objections must be filed within ten (10) days of the date of service
`of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The
`time calculation of this ten-day period excludes weekends and holidays and provides for
`an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail
`pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to:
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`Larry W. Propes, Clerk
`United States District Court
`P.O. Box 10768
`Greenville, South Carolina 29603
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`Failure to timely file specific written objections to this Report and
`Recommendation will result in waiver of the right to appeal from a judgment of the
`District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.
`Arn, 474 U.S. 140 (1985); U. S. v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins,
`766 F.2d 841 (4th Cir. 1985).