Opinion
C. A. 6:24-cv-00748-TMC-KFM
04-23-2024
Pamela Daab, Plaintiff, v. Denise Phillips, Lowe's Improvement, Gold's Gym, Whole Foods, Defendants.
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 February 13, 2024 (doc. 1). By order dated March 5, 2024, 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 (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 her duty to keep the court informed as to her current address (id. at 2-3). The plaintiff did not respond to the order, so a second proper form order was issued on April 5, 2024 (doc. 13). 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 her duty to keep the court informed as to her current address (id. at 2). The plaintiff did not respond to the court's April 5, 2024, order and the time for response has lapsed; as such, the plaintiff has failed to comply with orders of this court and to bring her case into proper form.
ALLEGATIONS
This is a civil action filed by the plaintiff, a non-prisoner seeking damages from the defendants (doc. 1). The plaintiff alleges that the defendants have violated her right to speedy service (id. at 2). She contends that she was forced to leave the defendants' establishments despite not doing anything wrong (id. at 4). The plaintiff also contends that the defendants called the police on her for no reason when she was on their property “taking care of [her] businesses” (id.). For relief, the plaintiff seeks money damages for insulting her character (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 from the defendants. 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 her case into proper form. In doing so, she has failed to comply with the court's orders of March 5, 2024, and April 5, 2024, 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; 13). Each order warned the plaintiff of the consequences of failing to comply with its instructions, including the dismissal of her case pursuant to Fed.R.Civ.P. 41(b) (docs. 9 at 1; 13 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 she had brought it into proper form, because her 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). Indeed, the plaintiff's vague and conclusory allegations that her rights were violated because she was denied “speedy service” and insulted by individuals employed by the defendants are legally and factually frivolous. Raiford v. FBI, C/A No. 1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), Report and Recommendation adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the irrational or the wholly incredible”). As such, even if the plaintiff had brought her 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”).
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).