Opinion
C. A. 4:21-2275-RBH-KDW
12-22-2021
Molly Keel, Plaintiff, v. Conway Police Dept.; Horry County Police Dept.; and Conway Health Dept., Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Molly Keel (“Plaintiff”), proceeding pro se, filed this complaint alleging violations of her civil rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the complaint.
I. Factual and Procedural Background
Plaintiff filed her Complaint against Defendants on July 23, 2021. ECF No. 1. In her Complaint, Plaintiff claims she went to the Conway Police Department on July 13, 2021, to try and write up officer misconduct concerning gangs doing illegal crimes to herself and her children. ECF No. 1 at 5. Plaintiff says these individuals have gone into their health records to spread lies against them. Id. Plaintiff alleges they have lost wages and properties. Id. Plaintiff contends they caused injuries to her son Kane by setting up an accident that put him in the ICU. Id.
The undersigned issued a Proper Form Order on July 26, 2021, instructing Plaintiff to provide additional information regarding Defendants. ECF No. 8. On August 16, 2021, Plaintiff requested an extension of time to respond to the Proper Form Order, and the court granted an extension allowing Plaintiff until September 15, 2021, to submit the required information. ECF Nos. 12, 13. On September 17, 2021, Plaintiff filed another motion for extension of time to comply with the Proper Form Order and the court granted the extension allowing Plaintiff until October 15, 2021, to respond. ECF Nos. 17, 18. On October 14, 2021, Plaintiff again requested an extension of time. ECF No. 21. The court denied the extension but gave Plaintiff until October 28, 2021, to respond to the Proper Form Order and informed her that if she failed to comply within the time permitted her case may be dismissed for failure to prosecute and failure to comply with a court order. ECF No. 22. On October 28, 2021 Plaintiff filed a fourth motion for an extension, which was denied. ECF Nos. 24, 28. On November 15, 2021 Plaintiff filed another motion for extension of time to respond to the Proper Form Order. ECF No. 30. On November 16, 2021, the court denied Plaintiff's motion for extension, ECF No. 32, and issued a second proper form order and notice notifying Plaintiff that her complaint was subject to summary dismissal because she failed to allege sufficient factual allegations to state a claim. ECF No. 31. The order further advised Plaintiff that she had until November 30, 2021, to file an amended complaint or otherwise cure the identified deficiencies in her pleadings. Id. On November 30, 2021, Plaintiff requested additional time to seek an attorney and to respond to the court's second proper form order and notice. ECF No. 35. On December 7, 2021, the court granted Plaintiff's motion giving her until December 21, 2021, to submit the information required by the court's proper form order. ECF No. 36. Plaintiff was also advised that no further extension would be granted and that her case may be dismissed for failure to prosecute and failure to comply with an order of the court if she did not bring the case into proper form within the time permitted. Id. Plaintiff did not file a response to the November 16, 2021 second proper order and notice, but instead filed a second motion for extension of time. ECF No. 39.
II. Discussion
A. Standard of Review
Plaintiff filed her complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
B. Analysis
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear that a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79. Plaintiffs complaint provides no factual allegations concerning Horry County Police Department and Conway Health Department, and Plaintiffs allegations against Conway Police Department do not rise to the level of a constitutional violation. Accordingly, Plaintiffs complaint should be summarily dismissed.
III. Conclusion and Recommendation
By order issued on November 16, 2021, the undersigned provided Plaintiff an opportunity to correct the defects identified in her complaint and further warned Plaintiff that if she failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed without leave for further amendment. Plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. The undersigned recommends the district court dismiss this action. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
IT IS SO ORDERED.
The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”
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
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).