Opinion
C/A No. 8:20-cv-01036-HMH-KFM
06-03-2020
George Richard Dix, Plaintiff, v. Dr. Michael Thorsland, Defendant.
REPORT OF MAGISTRATE JUDGE
The plaintiff, proceeding pro se, brings this civil action seeking damages pursuant to 42 U.S.C. § 1983. 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.
The plaintiff's complaint was entered on the docket on March 13, 2020 (doc. 1). By order filed April 7, 2020, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 6). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 4-5). On May 7, 2020, the plaintiff's amended complaint was entered on the docket (doc. 11). However, because the amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
ALLEGATIONS
In his amended complaint, the plaintiff alleges that his First Amendment rights were violated by the defendant, who is identified by the plaintiff as the Superintendent of Education (doc. 11 at 2, 3). Specifically, the plaintiff contends that in April 2019 he was at a softball game at Walhalla High School and approached a player and asked her if an injured player would be playing in the playoffs (id. at 5). The plaintiff alleges that after meeting with the defendant about his conversation with the softball player, he received a no trespass order for talking to the player (id.; see doc. 11-1). Although the plaintiff does not allege specific injuries, it appears that he asserts that his character has been damaged and demeaned (doc. 1 at 6). For relief, the plaintiff seeks punitive damages and fees and costs, including potential airline and car rental expenses to travel from his second home (id.).
STANDARD OF REVIEW
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).
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. This court possesses the inherent authority to review the pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the pleading is not subject to the pre-screening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) . . . authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) (unpublished) (finding that "frivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted." (citations omitted)); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (finding that "district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee"). Accordingly, "[t]he present Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous." Trawick v. Med. Univ. of S.C., C/A No. 2:16-cv-730-DCN-MGB, 2016 WL 8650132, at *4 (D.S.C. June 28, 2016), Report and Recommendation adopted by 2016 WL 8650131 (D.S.C. July 7, 2016), aff'd 671 F. App'x 85 (4th Cir. 2016) (mem).
The plaintiff paid the full filing fee; thus, this case is not subject to the pre-screening provisions of 28 U.S.C. § 1915. Further, the plaintiff is not a prisoner, so the case is not subject to the screening provided for in 28 U.S.C. § 1915A.
This complaint is filed pursuant to 42 U.S.C. § 1983, which "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendant. However, the plaintiff's amended complaint is subject to summary dismissal.
The plaintiff's amended complaint lacks any factual allegations suggesting that the defendant violated his First Amendment rights. As amended, the plaintiff contends that the defendant issued the trespass notice based upon the request of the principal of West Oak High School (doc. 11-1). Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that "a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.") (citing Twombly v. Bell Atl. Corp., 550 U.S. 544, 556-57 (2007)). Nevertheless, the plaintiff's contention that his First Amendment rights were violated because he was served with a trespass notice after talking to a player during a softball game at Walhalla High School (docs. 11 at 5 ; 11-1) is insufficient as a matter of law. As held by the Supreme Court, there "is no question that [school officials], like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated." Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 390-91 (1993). Indeed, "[m]embers of the public do not have any constitutional right of access to public school, and public ownership does not automatically open up school grounds to the public." See Cole v. Buchanan Cty. Sch. Bd., 328 F. App'x 204, 209 (4th Cir. 2009) (unpublished) (internal citation omitted). As such, the plaintiff's claims are frivolous, because he is not entitled to unconditional access to Walhalla High School athletic events, much less entitled to constitutional protection for speaking to a student on a Walhalla High School athletic team. Accordingly, because the plaintiff's complaint is frivolous, it is subject to summary dismissal because the court lacks subject matter jurisdiction over frivolous matters.
RECOMMENDATION
By order issued April 7, 2020, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated April 7, 2020 (doc. 6). Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)). The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge June 3, 2020
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).