Opinion
C. A. 6:23-cv-04454-TMC-KFM
11-06-2023
James A. Griffin, Plaintiff, v. First Progress, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This is a civil action filed by a non-prisoner. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on September 5, 2023 (doc. 1). By order dated September 15, 2023, the plaintiff was given an opportunity to provide the necessary information to bring the case into proper form for evaluation and possible service of process, including paperwork regarding payment of the filing fee (doc. 9). The plaintiff was warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The plaintiff was also advised of his duty to keep the court informed as to his current address (id. at 2). The plaintiff did not respond to the order, so a second proper form order was issued on October 16, 2023 (doc. 11). The second proper form order warned the plaintiff a second time that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The second proper form order also reminded the plaintiff of his duty to keep the court informed as to his current address (id. at 2). The plaintiff did not respond to the court's September 15, 2023, or October 16, 2023, orders and the time for response has lapsed; as such, the plaintiff has failed to comply with orders of this court and to bring his case into proper form.
ALLEGATIONS
The plaintiff alleges federal question jurisdiction (doc. 1 at 1). The plaintiff asserts that he is a non-citizen “Native Carolinian” (id.). The plaintiff contends that he began contesting a bill from the defendant in November 2022 (id.). The plaintiff alleges that his “coupon payments” were not accepted by the defendant (id. at 1-2). The actions by the defendant in rejecting the plaintiff's payments adversely affected his credit score and reputation (id. at 2).
The plaintiff seeks relief pursuant to 18 U.S.C. § 242 because the plaintiff's “coupon note” was not honored (id.). He further contends that the defendant violated the Truth in Lending Act (“TILA”) because his “coupon note” was not accepted as payment (id.). The plaintiff's third claim for relief is defamation (id.). His fourth claim for relief is for violations of the Fair Debt Collection Practices Act (“FDCPA”) because the defendant reported past due payments on the plaintiff's credit report (id. at 2-3). The plaintiff also alleges deprivations of his rights under the Fifth Amendment because the defendant did not accept the plaintiff's “coupon note” (id. at 3). For relief, the plaintiff seeks a declaration that the defendant violated his rights and money damages (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed this action seeking damages and injunctive relief from the defendant. However, the plaintiff's complaint is subject to summary dismissal.
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite multiple opportunities, the plaintiff has failed to bring his case into proper form. In doing so, he has failed to comply with the court's orders of September 15, 2023, and October 16, 2023, which instructed the plaintiff to provide specific documentation to the court so that the case may be screened as required by 28 U.S.C. § 1915, and so the United States Marshals Service could attempt service of process if service was authorized (docs. 9; 11). Each order warned the plaintiff of the consequences of failing to comply with the orders' instructions, including the dismissal of his case pursuant to Fed.R.Civ.P. 41(b) (docs. 9 at 1; 11 at 1). Despite these warnings, the plaintiff has not provided the court with the required documentation. Accordingly, as the plaintiff has failed to comply with the court's orders and has been previously warned that such failures could result in dismissal, it appears that less drastic sanctions would not be appropriate. As such, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
Additionally, the undersigned notes that the plaintiff's complaint would be subject to summary dismissal even if he had brought it into proper form, because his allegations are frivolous and fail to state a claim for relief. See Feurtado v. McNair, C/A No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). For example, the plaintiff has failed to show that the defendant defamed him or violated his Constitutional rights by refusing the plaintiff's attempt to satisfy his bill with a so-called “coupon note” rather than with money or valid credit. Further, TILA requires credit terms be disclosed to a consumer; it does not that require businesses, such as the defendant, accept “coupon notes” instead of actual money as payment. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998) (citing 15 U.S.C. § 1640(a)). Moreover, the plaintiff has no basis to seek relief under the FDCPA because the defendant, the owner of the debt, is not a “debt collector” subject to the FDCPA. See 15 U.S.C. § 1692a(6) (defining debt collector as any person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another”); see also Barber v. Rushmore Loan Mgmt. Servs., LLC, C/A No. 3:17-cv-00982-TLW-SVH, 2018 WL 4957409, at *4 (D.S.C. Feb. 21, 2018), Report and Recommendation adopted by 2018 WL 4489290 (D.S.C. Sept. 19, 2018), aff'd 769 Fed.Appx. 106 (4th Cir. 2019) (noting that “creditors collecting their own debts are not ‘debt collectors' for purposes of the FDCPA and are exempt from the FDCPA's provisions” (internal quotation marks and citations omitted)). Further, the plaintiff's allegations -involving the defendant's rejection of his “coupon notes” - appear to be based on the notion that he has special status in the United States as a “National of the United States of America, non-citizen, Native Carolinian” (doc. 1 at 1). Although the plaintiff does not identify himself as a sovereign citizen, his complaint bears all of the hallmarks of the “sovereign citizen” theory. See Leaks v. N.C. , C/A No. 3:22-cv-00108-MR, 2023 WL 2291241, at *1-2 (W.D. N.C. Feb. 28, 2023) (recognizing as a sovereign citizen a plaintiff identified as a national of the United States of America). Adherents to the “sovereign citizen” theory “believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior.” United States v. Ulloa, 511 Fed.Appx. 105, 106 n.1 (2d Cir. 2013); see also Presley v. Prodan, C/A No. 3:12-3511-CMC-JDA, 2013 WL 1342465, at *2 (D.S.C. Mar. 11, 2013) (collecting cases describing the “sovereign citizen” movement and its common features), Report and Recommendation adopted by 2013 WL 1342539 (D.S.C. Apr. 2, 2013). These theories have repeatedly been rejected as baseless. See, e.g., United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (“Regardless of an individual's claimed status . . . as a ‘sovereign citizen' . . . that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily, however they are presented.”); United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (explaining claim by party that he was “outside” the jurisdiction of the United States to be “completely without merit” and “patently frivolous” and rejecting it “without expending any more of this Court's resources on their discussion”); Glover v. South Carolina, C/A No. 5:16-cv-00969-JMC, 2017 WL 1836982, at *1 n.1 (D.S.C. May 8, 2017), appeal dismissed sub nom., 700 Fed.Appx. 306 (4th Cir. 2017). As such, even if the plaintiff had brought his case into proper form, it would still be subject to summary dismissal as frivolous.
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending the complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). It is further recommended that the United States District Judge assigned to this case warn the plaintiff regarding the entry of sanctions in the future should the plaintiff continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).