Opinion
No. 5:18-CV-347-FL
07-23-2018
THEODORE WILLIAMS, JR., et al., Plaintiffs, v. STATE OF NORTH CAROLINA, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court for a memorandum and recommendation on Plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915 and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1]. Plaintiff purports to have earned $11,000 per month during the last 12 months, but his employment ended in April 2018, and he anticipates earning $600 monthly going forward. Accordingly, Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs and the application is allowed. However, the complaint fails to state a claim for relief. Accordingly, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "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 v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . .'" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Of course, as part of its review, the court may consider whether it has subject matter jurisdiction of the case. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Wright v. Huggins, No. 5:09-CV-551-D, 2010 WL 2038806, at *2-3 (E.D.N.C. Mar. 11, 2010) (dismissing complaint on basis of lack of subject matter jurisdiction as part of court's frivolity review under 28 U.S.C. § 1915) (citations omitted).
II. ANALYSIS
Plaintiff proffers minimal factual allegations in the complaint. Plaintiff brings this action pursuant to 18 U.S.C. §§ 241 and 242, as well as for harming Plaintiff, "infringement of travel constantly," Due Process violation, "treated as sa[]vage/trash as if not a man," hate crimes, denationalization, aiding and abetting, kidnapping, ransom, "false fictitious gramm[a]r" and the state "not following the United States Code and has had much time to correct [the] 'error on law.'" Compl. [DE-1-1] at 2-3. Further, in his application to proceed in forma pauperis, Plaintiff stated that he is an "aboriginal indigenous American." [DE-1] at 5. Otherwise, Plaintiff provides no factual allegations in the complaint.
Having carefully reviewed Plaini dontiff's complaint, the court determines that Plaintiff's complaint lacks an arguable basis in fact. Neitzke, 490 U.S. at 325. A complaint must contain factual allegations, otherwise, the claim is nothing more than a bare assertion and frivolous. White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (minimum level of factual support required); see Adams, 40 F.3d at 74-75. Here, Plaintiff's complaint consists only of legal terminology and general, accusations with no factual basis, and is therefore not actionable due to the lack of factual support. Accordingly, Plaintiff's complaint is patently frivolous and fails to state a claim upon which relief can be granted, and it is recommended that the complaint be dismissed.
III. CONCLUSION
For the reasons stated herein, the application to proceed in forma pauperis is ALLOWED and it is RECOMMENDED that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until August 6, 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, the 23rd day of July 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge