Opinion
C. A. 4:21-2247-RBH-KDW
12-22-2021
Molly Keel, Plaintiff, v. Waccamaw Mental Health; Kathy Ward; Donno Lupo; M.U.S.C. Psychiatric Hospital Charleston, S.C.; E.M.S. Conway Hospital; Horry County Police Dept.; Magistrate Judge Harrelson; J. Reuben Long Detention Center, Conway, S.C.; and Judge Livingston, 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 on July 22, 2021. ECF No. 1. In her Complaint, Plaintiff alleges she called 911 on July 22, 2019, and asked officers and EMS to come to her home and take her son to get detoxed. ECF No. 1 at 4. Plaintiff claims two EMS personnel came to her home earlier that day to evaluate whether her son needed to go to the hospital, but they could not get her son to come out of the bathroom. Id. Plaintiff says they heard her son “talking out of his head and mess[ed] up on drugs.” Id. Plaintiff says she called a regular phone number a second time to get help for her son. Id. Plaintiff claims the responding officers placed her under arrest because she called them to tell them her son was out of the bathroom and taking her car and other items from her home to pawn them. Id. at 5. Plaintiff says officers told her she misused 911 several times that day. Id. Plaintiff contends she did not misuse 911 and her son was arrested on August 4, 2019, and taken to the hospital to be detoxed. Id.
The undersigned issued a Proper Form Order on July 26, 2021 instructing Plaintiff to provide additional information regarding Defendants. ECF No. 11. 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. 15, 16. 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. 20, 21. On October 14, 2021, Plaintiff again requested an extension of time. ECF No. 24. 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. 25. On October 28, 2021 Plaintiff filed a fourth motion for an extension, which was denied. ECF Nos. 27, 31. On November 15, 2021, Plaintiff filed another motion for extension of time to respond to the Proper Form Order. ECF No. 34. On November 16, 2021, the court denied Plaintiff's motion for an extension, ECF No. 36, and issued an order notifying Plaintiff that her complaint was subject to summary dismissal because she failed to allege sufficient factual allegations to state a claim. ECF No. 35. 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 filed a motion requesting an extension of time to respond to the court's November 16, 2021 second proper form order and notice and to seek an attorney. ECF No. 39. On December 7, 2021, the court granted Plaintiff's motion for additional time to respond to the November 16, 2021 second proper form order and notice and advised Plaintiff that she had until December 21, 2021, to submit the information requested. ECF No. 40. Plaintiff was also advised that the court would not grant any further extension and if she did not bring her case into proper form within the time permitted her case may be dismissed for failure to prosecute and failure to comply with an order of the court. 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. 43.
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. Plaintiff's complaint provides no factual allegations concerning Waccamaw Mental Health, Kathy Ward, Donno Lupo, M.U.S.C. Psychiatric Hospital Charleston, S.C., Magistrate Judge Harrelson, J. Reuben Long Detention Center, Conway, S.C., and Judge Livingston. Plaintiff has also failed to allege sufficient factual allegations to establish a question of fact whether actions taken by EMS Conway Hospital and Horry County Police Department rose to the level of a constitutional violation. Accordingly, Plaintiff's complaint is subject to summary dismissal.
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
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).