Opinion
1:01CV18O
February 14, 2002
ORDER AND RECOIGIENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, who is either a resident of the State of North Carolina or Virginia, has filed a civil action in this Court. He is representing himself and, therefore, is proceeding pro se. His alleged complaint lists 29-31 individuals or governmental entities. Plaintiff is apparently attempting to make the following claims:
Plaintiff says the home he That was in both North Carolina and Virginia and that he wants a change of venue to this Court to escape the prejudice of the Virginia courts. (Docket No. 18) He lists a North Carolina address for receipt of pleadings.
1. Monetary damagep;
2. To clear up all charges against his wife, along with vacating all charges and convictions or at least removing them from any governmental record; and
3. That the United States be required to issue him or his wife a new Social Security number. (The United States, however, has not been made a party to the lawsuit.)
Plaintiff is also suing a gasoline distributorship and a bank for refusing him service.
Attached to this paperwriting is a four-page document entitled "Complaint." It alleges that the State of Virginia has permitted police, courts, and individuals to inflict harm on his wife by falsifying records, convictions, charges, etc., and that said charges are on appeal in another court. Plaintiff also complains that his wife was arrested on December 16, 1998 without probable cause and without his permission, and that a motor vehicle was impounded. He states his wife was abused in custodial confinement, although he has no personal knowledge of this. He also complains about judicial actions taken by various court officers in relationship to a bond. He informs the Court that his wife has been found guilty of driving with a suspended driver's license. In conclusion, plaintiff claims that the actions destroyed his marriage and caused him to lose property, ostensibly in defense of his wife, and that he is also mad at Highway Patrol Officers for deliberately setting traps for his wife.
Plaintiff paid the filing fee and apparently attempted to serve individuals by certified mail. However, a review of the certified receipts sent back indicate that these were not received by any of the listed defendants, with the exception, perhaps, of service on a Benjamin W. Crooks, which may have been delivered to him.
Plaintiff has failed to provide proof of personal service on most of the defendants. He has 120 days to accomplish service and that time has passed. Fed.R.Civ.P. 4(m). He has not shown good cause for this deficiency and, therefore, the action may be dismissed on this basis, except as to defendant Crooks.
Plaintiff has not filed any motions in this case, but some of the defendants have done so. The motions are as follows: Bedford County and Roanoke County, Virginia, the Roanoke City or County Police Department, and James Swanson have filed a motion to dismiss. (Docket No. 7) C.L. Woods and Terry Williams, who are apparently state court magistrates for the Commonwealth of Virginia and the Floyd County Magistrate's Office, have also filed a motion to dismiss. (Docket No. 13) Finally, the Branch Banking and Trust Company ("BBT") has filed a motion to dismiss. (Docket No. 16) In addition, Floyd County, Virginia, has filed two motions (docket nos. 25 and 34) to strike various documents filed by plaintiff. With respect to the motions to strike documents, most of plaintiff's paperwritings have already been stricken for being deficient. Therefore, these matters shall be denied for being moot.
With respect to the motions to dismiss, the defendants have raised a number of defenses. Some of them pertain to deficiencies in the complaint itself. In that regard, the complaint is deficient and would need to be stricken. A complaint must be a short and plain statement of the facts giving rise to the complaint and it must show that the plaintiff is entitled to relief, along with a statement of the relief which he seeks. Instead, plaintiff's complaint is merely a rambling, prolix statement. It does not permit any party a meaningful opportunity to respond and, therefore, it should be stricken on that ground alone. In re Buffets, Inc. Securities LiticTation, 906 F. Supp. 1293 (D. Minn. 1995). However, there are much more serious flaws.
Some of the defendants contend this action should be dismissed because plaintiff lacks standing. That is, plaintiff is attempting to recover because of actions suffered by his wife. Defendants are correct. Plaintiff may not sue to recover for injuries to another. Pierce v. Stinson, 493 F. Supp. 609 (E.D. Tenn. 1979); Baffa v. Black, 481 F. Supp. 1083 (E.D. Pa. 1979). It is clear that the complaint centers on plaintiff's wife's criminal conduct and the consequences of that conduct. Plaintiff attempts to avoid this problem by saying that he only wants to sue for the effect his wife's problems had on his marriage. However, this does not eliminate the problem that the core of his lawsuit involves his wife's problems. His claim is merely an ancillary one to his wife's problems. Plaintiff may not represent his wife and, therefore, the entire action should be dismissed on that ground.
Next, defendants point out that the complaint fails to list the actions of many of the defendants. In other words, most of the defendants are not even named in the body of the complaint. This, alone, constitutes a basis for dismissal as to those defendants. Even as to the defendants which are mentioned, a review of the complaint fails to provide sufficient notice of any unlawful conduct. Other parties are immune from damages. It will be assumed that it is true that plaintiff's wife was found guilty of some criminal charges. However, individuals connected with that conviction or convictions are all immune from damages. Judges enjoy absolute immunity.Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).See King v. Myers, 973 F.2d 354 (4th Cir. 1992) (even the ordering of warrantless arrest by state court magistrates is not in clear absence of all authority). Prosecutors also have absolute immunity for actions taken with respect to their advocacy functions. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). To the extent plaintiff names attorneys, they may not be sued under 42 U.S.C. § 1983. Attorneys actions do not constitute state action for purposes of Section 1983. Flemincr v. Asbill, 42 F.3d 886, 890 (4th Cir. 1994). Even with respect to the police officers, all plaintiff states is that they deliberately set traps for his wife. This fails to show that the actions clearly infringed any constitutional right. See, e.g., Anderson v. Creicihton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Furthermore, the bank and gasoline station also would not be state actors.
Plaintiff's complaint is further defective and could be dismissed because it fails to state any basis for jurisdiction. It is not entirely clear that he is a citizen of North Carolina and all the defendants are citizens of other states. There is no claim and showing of diversity of citizenship jurisdiction. 28 U.S.C. § 1332. Perhaps plaintiff is suing to enforce a federal right. 28 U.S.C. § 1331, 1343.
Some of the defendants assert this case has been improperly brought in this district. While plaintiff apparently claims to live in, or at least have some ties to, North Carolina, all the defendants apparently reside in Virginia and all the actions took place in Virginia. Therefore, there are no grounds under the venue statute for this case to be maintained in this Court. See 28 U.S.C. § 1391. This action should be dismissed on this ground as well. As will be seen, it appears that plaintiff brought this action in this Court for purposes of spite and inconvenience, as opposed to having any good faith basis for doing so. As a result, there is no occasion to consider whether the action should be transferred to a federal court in Virginia.
The motion to dismiss by BBT shows that plaintiff previously brought this action in the state courts of Virginia. Many of the same defendants were named in that case, although it is not clear whether all of the defendants in this case were named in the lawsuit filed in Montgomery County, Virginia, or whether additional defendants named there are not named here. However, it is clear that, in that case, plaintiff was bringing an action purportedly on behalf of his wife because of her criminal driving travails. It also appears that in that action, plaintiff was complaining about his wife's problems and about his wife spending time in jail from December 1998 to March 1999. The state court granted a judgment of dismissal on behalf of BBT. That dismissal was denied review by the Virginia Supreme Court. Defendant BBT, therefore, requests dismissal of this action based on res judicata. In both the action in the state court and the one filed in this Court, plaintiff fails to mention any action taken by the Bank which would constitute a basis for a valid lawsuit. However, it appears that the basis for naming the Bank is tied to plaintiff's wife's plight in both
On its own, the Court notes that plaintiff's request for a new Social Security number is defective in that he has not made the united States a party to this action nor could he because joinder would not be proper.
Next, plaintiff is essentially requesting habeas corpus relief. Not only can he not do so because he is not the petitioner, but also because he may not combine a habeas corpus petition with a civil action. Instead, he must follow the rules governing Section 2254 actions in federal court. This he has not done, nor has his wife. Because he has attempted to combine a habeas corpus action with a civil complaint, the action is defective. For this additional reason, the complaint should be dismissed.
For all the reasons stated above,
IT IS ORDERED that the motions of Floyd County, Virginia, (docket nos. 25 and 34) to strike various documents filed by plaintiff are denied without prejudice for being moot.
IT IS RECOMMWENDED that this Court dismiss this action for sua sponte reasons, and based on defendants' motions to dismiss (docket nos. 7, 9 and 16).