Opinion
C. A. 4:23-6040-SAL-KDW
01-24-2024
Kathleen Gerald, Plaintiff, v. North Carolina Dept. of Health; North Carolina Vital Records; Atrium Health University Hos.; Gethsemane Cemetery and Memorial; and Wells Fargo, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Kathleen Gerald (“Plaintiff”), proceeding pro se, filed this action alleging Defendants North Carolina Department of Health, North Carolina Vital Records, Atrium Health University Hospital, Gethsemane Cemetery and Memorial, and Wells Fargo violated her civil rights. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Complaint in this case without prejudice and without issuance and service of process.
I. Factual and Procedural Background
Plaintiff states she contacted Wells Fargo in November 2023 and requested that Twanna Lattimore be removed from her bank accounts, but her requests were denied. ECF No. 1 at 4. Plaintiff says she then contacted Ralph L. McMillan Law Office and requested that Ms. Lattimore be removed from the estate of her mother, Clara McGrier, but the Law Office denied her request explaining Ms. Lattimore was properly on the estate according to the death certificate. Id. Plaintiff states she explained to the Law Office her birth certificate would prove she was the daughter of Clara McGrier, and the attorney told Plaintiff she needed to have the court issue an order to remove Ms. Lattimore from her mother's estate. Id. Plaintiff alleges she next contacted Gethsemane Cemetery and Memorial Services about the invalid death certificate, and no one has returned her calls. Id. at 4-5. Plaintiff says she then contacted Atrium Health University Hospital and asked how Ms. Lattimore's name got on her mother's death certificate, and they told Plaintiff they understood her concerns, and they would call her back. Id. Plaintiff claims no one called her back. Id. Plaintiff then states she contacted Vital Records about her concerns, and says she was told if the certificate of death contained fraud, then it was not valid. Id. Plaintiff states she was told she would need a court order to void the original certificate and have a new one issued. Id.
On December 27, 2023, the court notified Plaintiff her Complaint was subject to summary dismissal because she failed to allege sufficient factual allegations to state a claim. ECF No. 14. The order further advised Plaintiff she had until January 10, 2024, to file an amended complaint or otherwise cure the identified deficiencies in her pleadings. Id. Plaintiff did not file a response to the January 10, 2024, Order.
II. Discussion
A. Standard of Review
Plaintiff filed her Complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear that a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 and Bivens alleging Defendants violated her Fourteenth Amendment and civil rights when they committed fraud on her mother's death certificate. ECF No. 1 at 3-6. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff's claims of constitutional violations by Atrium Health University Hospital, Gethsemane Cemetery and Memorial, and Wells Fargo must be dismissed because these Defendants are not state actors and cannot have acted under the color of state law. Purely private conduct such as that alleged against these Defendants, no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under the Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721 (1961). Although the North Carolina Department of Health and North Carolina Vital Records may be subject to suit pursuant to § 1983, Plaintiff has failed to allege sufficient factual allegations to show that any actions or inactions taken by the North Carolina Department of Health and North Carolina Vital Records violated her constitutional rights. The undersigned recommends Plaintiff's claims against all Defendants be summarily dismissed.
In order to bring a Bivens claim, the plaintiff must allege that the defendants (1) are federal agents (2) who violated plaintiff's constitutional rights (3) while acting under the color of federal law. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 391-92 (1999). None of the Defendants named in Plaintiff's Complaint are federal officials, therefore, Bivens is not applicable to her claims.
III. Conclusion and Recommendation
By order issued on December 27, 2023, the undersigned provided Plaintiff an opportunity to correct the defects identified in her Complaint and further warned Plaintiff that if she failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed without leave for further amendment. Plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, the undersigned recommends this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).