Opinion
C. A. 4:21-3027-SAL-TER
09-23-2021
Charles Ray Thomas, II, Plaintiff, v. John Jepertinger, Defendant.
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 sues as the only defendant here, Defendant Jepertinger, a solicitor. (ECF No. 1). In another recent case, Plaintiff was specifically informed Jepertinger was subject to summary dismissal as he was absolutely immune. Thomas v. Clements, No. 4:21-cv-1952-SAL(ECF No. 5 at 2). Prosecutors are protected by immunity for activities in or connected with judicial proceedings. Van de Kamp v. Goldstein, 555 U.S. 335, 338-44 (2009); Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir.2000). Prosecutors, when acting within the scope of their duties, have absolute immunity from damages liability under § 1983 for alleged civil rights violations committed in the course of proceedings that are “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). This action is subject to summary dismissal.
Further, Plaintiff's allegations border on the nonsensical and frivolous: “The is on an alternate valuation on a carry over basis, there needs to be a bond in place for the public official who is bringing charges. The defendant showed no bond to cover his tax liability within the motion of discovery.” (ECF No. 1 at 4)(errors in original). “Defendant is in direct violation of their Oath, Bond, Foreign registration Act, anti-bribery statement, and treason a public official.” (ECF No. 1 at 4)(errors in original).
A complaint is deemed frivolous when it is “clearly baseless” and includes allegations that are “fanciful, ” “fantastic, ” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal quotation marks omitted) (citing 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.
Thus, this action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss this case with prejudice and without issuance and service of process. Plaintiff cannot cure the defects identified above by amending his Complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993)). Further amendment would be futile. Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019). As noted above, this action is also frivolous and subject to summary dismissal. See Rufus v. Seymour, 836 Fed.Appx. 155 (4th Cir. Feb. 16, 2021)(unpublished)(affirming the declination of amendment due to frivolity summary dismissal).
Plaintiff's attention is directed to the important notice on the next page.
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).