Opinion
C. A. 4:22-1077-TLW-TER
07-11-2022
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Scott Wilkerson, Regina Crolley, Mark Keel, Robert Woods, IV, The Wilcox Law Firm, Aiken Bridges Attorney at Law, Thompson & Henry PA, Marlboro County Sheriff Office, Larry McNeill, Kevin Thomas, County of Marlboro, The Honorable Henry McMaster, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by 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 number of pending actions in this court; some of which involve some of the same Defendants and 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.
A complaint is frivolous when it is clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989)).When a plaintiff proceeds in forma pauperis, § 1915 “gives courts the authority to ‘pierce the veil of the complaint's factual allegations[,]' mean[ing] that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32. The district court is entrusted with the discretion to dismiss the case for factual frivolousness “when the facts alleged rise to the level of the irrational or the wholly incredible.” Id. at 33.
Plaintiff's allegations in the instant action involve her other pending actions. Under jurisdiction, Plaintiff alleges “this action is brought pursuant to Reaves v. Dickens, et all. False arrest 4:22-cv-639-TLW-TER ” (ECF No. 1 at 5). Plaintiff is also already pursuing the Defendants Wilkerson, Crolley, Keel, Woods, McNeill, and Thomas in this action also as Defendants in 4:22-cv-318-TLW-TER for alleged false arrest/false imprisonment claims. “Because district courts are not required to entertain duplicative or redundant lawsuits, they may dismiss such suits as frivolous pursuant to [section] 1915(e). Generally, a lawsuit is duplicative of another one if the parties, issues and available relief do not significantly differ between the two.” Cottle v. Bell, 229 F.3d 1142 (4th Cir. 2000) (per curiam). The redundant/duplicative nature of the claims against these defendants in this action renders it subject to summary dismissal as frivolous.
A complaint that is plainly abusive of the judicial process is properly labeled malicious within the context of § 1915(d). Spencer v. Rhodes, 656 F.Supp. 458, 460 (E.D. N.C. 1987). 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.” Id. (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).
Plaintiff's requested relief is for all defendants to be found in violation of 28 U.S.C. § 4101 defamation/libel/slander and for $1 million from each Defendant, stating attorneys “tried to humiliate Plaintiff and make fun of her.” (ECF No. 1 at 11). 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). Plaintiff attaches to her Complaint, the answer filed by the attorney of Willcox, Buyck, & Williams, P.A., who represents SLED in 4:22-cv-639-TLW-TER. (ECF No. 1-1). Plaintiff states the Answer is an example of defamation, libel, and slander. (ECF No. 1-1).
Even liberally construing Plaintiff's Complaint beyond her allegations regarding false arrest/false imprisonment, allegations of defamation, slander, and libel fail to state a cognizable claim under § 1983. See DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 200-203 (1989).
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 has already attempted to sue “The Wilcox Law Firm” in 4:22-1024-TLW-TER for filings made in representing some of the Defendants in the various actions filed by Plaintiff. Plaintiff alleges the response of “The Wilcox Law Firm, Aiken Bridges Law Firm, [and] Thompson & Henry” are “trashing” Plaintiff. (ECF No. 1 at 6). To the extent Plaintiff alleges “all of them violated the do not respond text order,” there has been no violation of the court's order by any representatives. (ECF No. 1 at 7-8). Plaintiff also exhibits her frustration that representatives removed her state court civil actions involving the alleged arrest to this federal court. (ECF No. 1 at 8). These allegations are frivolous.
This is the third action by Plaintiff regarding the court's order in 4:22-cv-00318-TLW-TER. On February 15, 2022, only in No. 4:22-cv-00318-TLW-TER the court entered an order stating that service has not been authorized and summons not issued by the Clerk: “It is not necessary for Defendants to answer or otherwise respond until further direction from the Court. Service has not yet been authorized and no summons(es) have been issued by the Clerk under the Clerk's seal to date.” Plaintiff continued to file Certificates of Service after the court issued its order. No motions or answers have been filed in 4:22-cv-00318-TLW-TER by representatives of defendants. Defendants filed limited notices of appearances with the court for the purposes of receiving e-filings related to the matter and asserted they did not waive service of process and had not been properly served. Plaintiff alleges these Defendants violated the court's order. (ECF No. 1). There simply has been no violation of the court's informative order by these parties.
Plaintiff's repetitious naming of Governor McMaster as a defendant in her multiple actions in this court when it is clear that there are no allegations of personal involvement in Plaintiff's allegations is frivolous and/or malicious.
Plaintiff's repetitious and frivolous filings are nearing a waste of limited judicial resources and Plaintiff may be sanctioned in the future if the course of malicious and/or frivolous litigation continues. This action is wholly frivolous and/or malicious and subject to summary dismissal under § 1915.
Currently pending besides this action are: No. 4:22-cv-318-TLW-TER, 4:22-cv-639-TLW-TER, 3:22-cv-732-TLW-TER, 4:22-cv-856-TLW-TER, 4:22-cv-1023, and 4:22-cv-1024-TLW-TER.
In order for the court to impose sanctions sua sponte under Rule 11, a party must be given notice that sanctions are being considered. Fed.R.Civ.P. 11(c)(1)(B). Accordingly, Plaintiff is hereby advised that Rule 11 sanctions will be considered in the future.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case pursuant to § 1915(e)(2)(B) 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).
The undersigned finds that, in light of all of the foregoing, Plaintiff cannot cure the deficiencies in her Complaint and that allowing Plaintiff to amend her pleadings therefore would be futile. This is so because, on the face of the Complaint, Plaintiff's allegations are frivolous. Therefore, the undersigned recommends that the District Court decline to give Plaintiff an opportunity to amend. See Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 n.7 (D.S.C. Oct. 2, 2018); Young v. Santos, No. GLR-16-cv-1321, 2018 WL 1583557, at *6 (D. Md. Apr. 2, 2018); McSwain v. Jobs, No. 1:13-cv-00890, 2014 WL 12672619, at *1 (M.D. N.C. Jan. 6, 2014) (“[G]iven the preposterous and frivolous nature of [the plaintiff's] complaint, it would be a waste of limited judicial resources to give him an opportunity to amend.”); see also Boyd v. South Carolina, No. 7:19-CV-00867-BHH-JDA, 2019 WL 2061495 (D.S.C. Mar. 28, 2019), report and recommendation adopted, 2019 WL 2057961 (D.S.C. May 9, 2019), aff'd, 773 Fed.Appx. 678 (4th Cir. 2019).
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).