Opinion
4:23-1911-TLW-TER
07-13-2023
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Kevin Schwedo, Thomas Scott Wilkerson, Robert “Rob” Bailes, Charles Michael Dickens, Kevin Thomas, Larry McNeill, Kathryn M. Crews, Cathy Hazelwood, Marlboro County Sheriff Office, County of Marlboro, South Carolina Department of Education, National Law Enforcement NLETS, Bill Phillips, Charles M. Coats, Jr. SLED-CJIS, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is the eighteenth civil action filed in the last year by Plaintiff, a pro se litigant, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. 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 plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for her, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff has a pending action and several recently dismissed actions in this court; some of which involve the same factual allegations as the instant action. All of Plaintiff's actions are subject to review for potential summary dismissal as Plaintiff is proceeding pro se and in forma pauperis. The court reviews Plaintiff's complaints under 28 U.S.C. § 1915, which directs the court to summarily dismiss a complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, as well as when monetary relief is sought from a defendant immune from such relief. Plaintiff's complaint is 82 pages in length and not in compliance with R. 8.
Rule 8 of the Federal Rules of Civil Procedure requires that complaints contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The court has the authority to dismiss excessively long complaints under Rule 8(a) where the length renders the complaint unintelligible. See e.g. United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 379 (7th Cir. 2003)(155 pages, 400 paragraphs, 99 attachments); In re Westinghouse Securities Litigation, 90 F.3d 696, 702-03 (3d Cir. 1996)(600 paragraphs spanning 240 pages), Vicom, Inc. v. Harbridge Merch. Svcs., 20 F.3d 771, 775-76 (7th Cir. 1994)(finding 119 page “less than coherent” complaint should have been dismissed); Kuehl v. FDIC, 8 F.3d 905, 906-09 (1st Cir. 1993) (43 pages); Michaelis v. Nebraska State Bar Ass'n, 717 F.2d 437, 439 (8th Cir. 1983) (98 pages).
Plaintiff alleges this is an action under § 1983 for violations of the Fourteenth Amendment, under 5 U.S.C. § 552,under 28 U.S.C. § 4101,under the Fair Credit Reporting Act, and under the Privacy Act of 1974.(ECF No. 1 at 25). Plaintiff alleges a Georgia police report was keyed as a warrant and keyed again into South Carolina law enforcement systems, resulting in her brief detainment in South Carolina after a traffic stop, which remains pending in state court, and allegations of such record affecting her employment opportunities. (ECF No. 1). Plaintiff has already filed multiple actions in 2022 regarding the 2020 and 2021 events alleged. Several defendants from one action, No. 4:22-cv-318-TLW-TER, were authorized for service and Plaintiff is pursuing her civil rights action against those Defendants in No. 4:22-cv-318-TLW-TER. Defendants named both in the instant action and in 4:22-cv-318-TLW-TER are Shwedo (summarily dismissed with prejudice, ECF Nos. 49, 117), Wilkerson(Motion to Dismiss pending, ECF No. 166), Dickens(Motion for Summary Judgment granted in his favor, ECF Nos. 185, 193), Thomas(Motion for Summary Judgment pending, ECF No. 222), McNeill(Motion for Summary Judgment pending, ECF No. 222), Crews(summarily dismissed with prejudice, ECF Nos. 49, 117), Hazelwood(summarily dismissed with prejudice, ECF Nos. 49, 117), Marlboro County Sheriff Office (previously summarily dismissed as building in No. 4:22-cv-3065),County of Marlboro (previously dismissed if construing as counties, immune, No. 4:22-cv-3065). Plaintiff also alleges the November 2021 criminal traffic case in Marlboro County has been pending for years. (ECF No. 1 at 8).
FOIA applies only to federal government agencies. Cotton v. Adams, 798 F.Supp. 22, 24 (D.D.C. 1992). NLETS is not a federal government agency. Plaintiff fails to state a claim under § 552. Further, under Fed R. Civ. Proc. R. 8, Plaintiff has not plausibly alleged with sufficiency any Privacy Act claim. See 5 U.S.C. § 552a.
There is no private right of action under 28 U.S.C. § 4101 . Nurse v. A Better Choice Case Mgmt., LLC, No. 9:21-CV-455-MBS-MHC, 2021 WL 3410791, at *6 (D.S.C. June 4, 2021), report and recommendation adopted in part, 2021 WL 3088047 (D.S.C. July 22, 2021) (recommitting to determine whether and to what extent Plaintiff engaged in sanctionable conduct). Section 4101 defines defamation in the context of foreign judgments, where an individual who has already received a favorable foreign judgment for the civil offense of defamation can use a domestic federal court to enforce that judgment; such is not the case here based on Plaintiff's factual allegations. Vogt v. Hartery, No. 1:20-CV-279, 2021 WL 6884866, at *3 (N.D. W.Va. Mar. 18, 2021), report and recommendation adopted sub nom., 2022 WL 453737 (N.D. W.Va. Feb. 14, 2022). Plaintiff was already instructed regarding the nonviability of such a claim in the dismissal of No. 3:22-cv-1399-TLW, which further demonstrates the abusive, frivolous nature of Plaintiff's filings.
Plaintiff's FCRA allegations have been addressed in her other lawsuits. The FCRA's purpose is to safeguard against the inaccurate reporting of information on a credit report and against the improper disclosure of a credit report. 15 U.S.C. § 1681. An allegation that an arrest was reported on a person's credit does not give rise to a claim. None of the defendants are a credit reporting agency within the act and even so, credit reporting agencies can lawfully report the record of an arrest. The Act allows even reporting agencies, of which none of the defendants are, to disclose any arrest record or other adverse item less than seven years old. See 15 U.S.C. § 1681c(a ); see also Parker v. Certified Profile, LLC, No. 7:14-CV-37-BO, 2014 WL 3534129, at *1 (E.D. N.C. July 16, 2014)(plaintiff failed to state a claim upon which relief could be granted when arrests challenged were plainly within the seven-year period). Further, there is no private right of action against users of reports. See 15 U.S.C. § 1681m; Reaves v. Dickens, No. 4:22-cv-318-TLW-TER, 2022 WL 2658906, *7 (D.S.C. Apr. 14, 2022).
The Privacy Act of 1974 has only two substantive sections, sections 3 and 7; section 3 is inapplicable here because it only applies to federal agencies. Plaintiff has failed to state a claim under section 7, which “makes it illegal for a governmental agency to deny an individual any right, benefit, or privilege based on the individual's refusal to disclose his or her [social security number]” because the claims do not involve disclosure of social security numbers. Reaves v. Maxton Police Dep't, 2023 WL 2925159, at *3 (E.D. N.C. Feb. 24, 2023), report and recommendation adopted, No. 7:22-CV-204-FL, 2023 WL 2923128 (E.D. N.C. Apr. 12, 2023).
In Marlboro County, Plaintiff also has an active state court case against Dickens, Marlboro County, SCDMV, SCHP, and SLED. No. 2022-CP-34-00034, with filings in that case as recently as May 2, 2023, and a hearing set for May 30, 2023. In Richland County, Plaintiff also sued Defendants Crews, Hazelwood, and Dep't of Educ.; that action was dismissed with prejudice in February 2023 after a hearing. No. 2021-CP-40-04462(“Rather than resolve her outstanding legal matters with her daughter or with the Georgia Sheriff, challenge the report provided by the FBI, or utilize the state review process in the DOE's Rule of Governance, Plaintiff filed lawsuits against Defendants and others, claiming the Georgia Sheriff mistakenly classified the case report against her as a felony warrant.”).
On several occasions via dismissals of her numerous actions, Plaintiff has been informed by the court that repetitious litigation is frivolous, citing the same cases discussed below. See No. 4:22-cv-1806-TLW; No. 4:22-cv-3065-TLW, No. 4:22-cv-1868-TLW; No. 3:22-cv-1323-TLW; No. 3:22-cv-1399-TLW; No. 4:22-cv-1024-TLW; No. 4:22-cv-1077-TLW; No. 4:22-cv-1142-TLW; No. 4:22-cv-1023-TLW. Also, Plaintiff has already received the required notice from the court regarding the possibility of Rule 11 sanctions. See No. 4:22-cv-1023-TLW. A “complaint that merely repeats pending or previously litigated claims may be considered abusive, and a court may look to its own records to determine whether a pleading repeats prior claims.” Spencer v. Rhodes, 656 F.Supp. 458, 460 (E.D. N.C. 1987) (internal citations and quotations omitted). “Federal courts have a responsibility to assess the nature of the allegations presented in a civil action and determine whether the plaintiff's motive is to harass and vex the defendants or to seek redress for a legitimate claim.” Johnson v. Edlow, 37 F.Supp.2d 775, 776 (E.D. Va. 1999). When claims arose out of the same facts as the facts in an earlier-filed action, this court dismissed such a complaint where issues raised were directly related to issues in a pending action brought by the same Plaintiff. Davis v. Colleton Cty. Mem'l Libr., No. 2:17-CV-2948-PMD-MGB, 2018 WL 2170338, at *2 (D.S.C. Apr. 12, 2018), report and recommendation adopted, 2018 WL 2149309 (D.S.C. May 10, 2018), dismissed, 2018 WL 6333601 (4th Cir. July 23, 2018); see also, e.g., Reynolds v. Third Circuit Pub. Def. Office, No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted by 2018 WL 1124592 (D.S.C. Mar. 1, 2018). “[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.” Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974 (D.S.C. July 28, 2015) (holding that “the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency”), affirmed by 631 Fed.Appx. 197 (4th Cir. Feb. 4, 2016); Cox v. Cartledge, No. 3:13-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013), adopted by 2013 WL 1401674 (D.S.C. April 8, 2013) (same); Sherron v. Perry, 2016 WL 407303, *2 (W.D. N.C. February 2, 2016) (same). “Because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per curiam). As to much of Plaintiff's numerous actions concerning a Georgia warrant and South Carolina arrest, the Fourth Circuit states the rule against claim splitting “prohibits a plaintiff from prosecuting its case piecemeal and requires that all claims arising out of a single wrong be presented in one action.” Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 635 (4th Cir. 2015)(quoting Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 Fed.Appx. 256, 265 (4th Cir.2008)). The rule against claim splitting is a corollary to the principle of res judicata. Id. at 635. It is undisputed that it is within a district court's power dismiss a suit that is duplicative of another federal court suit. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
The instant action, the eleventh lawsuit concerning Plaintiff's Georgia warrant and South Carolina arrest, is duplicative and frivolous. Plaintiff cannot “correct” complaints in No. 4:22-cv-318-TLW-TER by filing new actions. As to the parties named in the instant action and not named currently in No. 4:22-cv-318-TLW-TER, Defendant NLE, Bailes, Phillips, Coats, and South Carolina Department of Education, Plaintiff's scheduling order in that action required motions to amend be filed by February 27, 2023. (No. 4:22-cv-318-TLW-TER, ECF No. 188). Plaintiff instead filed a plethora of other motions. (ECF Nos. 200, 204, 205, 206). It appears Plaintiff's “Motion to Consolidate” filed in March 2023 was an attempt to add additional claims and parties similar to the instant action; this motion was construed as a Motion to Amend and denied because the Motion was untimely and had not addressed the good cause standard, No. 4:22-cv-318, ECF No. 230 at 5). Plaintiff cannot circumvent orders in No. 4:22-cv-318-TLW-TER by filing several duplicative and repetitive actions which have been found to be frivolous.
Plaintiff previously terminated this party in No. 4:22-cv-318, after receiving an order regarding deficiencies that no personal involvement by individuals was alleged for § 1983, and state agencies were subject to immunity for monetary damages; the party would be subject to summary dismissal for the same reasons here s/Thomas E. Rogers, III
Plaintiff has failed to state a claim upon which relief can be granted and this action is subject to summary dismissal for all the foregoing reasons.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case pursuant to § 1915(e) with prejudice and without issuance and service of process.
See Michau v. Charleston Cty., 434 F.3d 725, 728 (4th Cir. 2006) (affirming the district court's dismissal of two complaints pursuant to § 1915(e)(2)(B), even though the plaintiff was not a prisoner, because the plaintiff was proceeding in forma pauperis).
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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).