Opinion
4:22-2638-JD-TER
08-17-2022
Charles Ray Thomas, II, Plaintiff, v. United States, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. 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 plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for her, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff completed a five page complaint form for a civil case. (ECF No. 1). Plaintiff only sues the United States as a Defendant. Plaintiff alleges jurisdiction is based on federal question, “Tucker's Act, 28 U.S.C. § 1491(b).” (ECF No. 1 at 3). Plaintiff does not allege an amount in controversy because diversity is not one of his pleaded jurisdictional basis. Under statement of claim, it says “see attached complaint”; however, the attachment is a motion for a temporary restraining order. As relief on the Complaint, Plaintiff requests “temporary restraining order to block federal funding to Florence County and compensatory damages for emotional distress, anxiety, and [PTSD].” (ECF No. 1 at 4). This is the extent of Plaintiff's Complaint's allegations.
The Tucker Act is not a provision for a claim in and of itself but is simply provision for a statutory waiver of immunity in certain circumstances and jurisdictional requirements between the district courts and the Court of Federal Claims. United States v. Mitchell, 463 U.S. 206, 216 (1983); 28 U.S.C. § 1491.
The Motion for “temporary restraining order, block Florence County federal funding as per the Tucker Act, order asset freeze, appointment of receive, and permanent injunction relief” asserts that elected officials of Florence County are representatives of the United States and again like the 2021 action asserts that Florence County is a debt collector. Plaintiff asserts that “Defendant” is violating the “Tuckers Act and FDCPA.” The Defendant named here is the United States. (ECF No. 3).
Plaintiff has filed several actions in this court since 2019. In 2021, Plaintiff attempted to sue Florence County for alleged violations of the Fair Debt Collection Practices Act. See No. 21-cv-1560-SAL. The court recommended summary dismissal there because Plaintiff's allegations that Florence County was a debt collector, was seeking a debt from him, and that his criminal indictment for forgery was a money order were frivolous. Id. It appears by this instant filing Plaintiff is still attempting to pursue Florence County for the same perceived wrongs.
As background, the Tucker Act allows private parties to sue the federal government in the Court of Federal Claims for claims “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act encompasses two statutes: 28 U.S.C. § 1491 (commonly referred to as the “Big Tucker Act”) and 28 U.S.C. § 1346(a)(2) (the “Little Tucker Act”). The Big Tucker Act grants exclusive jurisdiction to the United States Court of Federal Claims for claims more than $10,000. The Little Tucker Act allows for concurrent jurisdiction with the district courts for civil actions or claims against the United States not exceeding $10,000. 28 U.S.C. § 1346(a)(2); Randall v. U.S., 95 F.3d 339, 346-347(4th Cir. 1996); Wright & Miller, Fed. Practice & Proc. § 3657. “[A] primary purpose of the Tucker Act is to ensure that a central judicial body adjudicates most claims against the United States Treasury.” Randall, 95 F.3d at 346 (internal quotation marks omitted). The Tucker Act provides a complete remedy for any taking by the federal government. Knick v. Twp. of Scott, Pennsylvania, 139 S.Ct. 2162, 2177 (2019). The Tucker Act itself “does not create any substantive right enforceable against the United States for money damages.” United States v. Mitchell, 463 U.S. 206, 216 (1983).
Plaintiff never alleges what was taken by the United States and allegations are directed at Florence County and not defendant United States. Nonetheless, if Plaintiff was seeking “a claim for just compensation under the takings clause,” such claim “must be brought to the Court of Federal Claims in the first instance.” E. Enters. v. Apfel, 524 U.S. 498, 520 (1998).
Plaintiff does not cite to § 1346.
Plaintiff does not allege a taking by the federal government. Under § 1491, Plaintiff must identify an independent substantive right enforceable against the United States for money damages; Plaintiff's allegations are against Florence County. (ECF Nos. 1, 3). Plaintiff's allegations against Florence County are simply not allegations against the United States and actions by Florence County are not actions by the United States.
To the extent that the plaintiff requests this court review or address a decision issued by a state court, this court has no jurisdiction and “lacks authority to review a state court's judgment, nor does it have the authority to remedy injuries that are caused by a state court's order.” Potter v. United States, 108 Fed.Cl. 544, 547-48 (2013).
Although citing numerous statutes, Plaintiff's allegations do not present any claim for relief that is plausible. Plaintiff's action against the United States based on allegations against Florence County is clearly baseless and is frivolous. See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) When a plaintiff proceeds in forma pauperis, § 1915 “gives courts the authority to ‘pierce the veil of the complaint's factual allegations[,]' mean[ing] that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32.
Because it is recommended that this entire action be summarily dismissed as frivolous and for failing to state a claim upon which relief can be granted, it is also recommended that Plaintiff's Motion (ECF No. 3) for “temporary restraining order, block Florence County federal funding as per the Tucker Act, order asset freeze, appointment of receive, and permanent injunction relief” be denied as the first element for an injunction is “likely to succeed on the merits” and the whole of Plaintiff's action is subject to summary dismissal such that Plaintiff cannot meet the first element of the test for a restraining order. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Dewayne v. J.P. Morgan Mortg. Acquisition Corp., No. CV 3:19-3376-JMC-PJG, 2019 WL 12363236, at *2 (D.S.C. Dec. 6, 2019); Demorcy v. Cook, No. CA 8:13-1494-JFA-JDA, 2013 WL 5332146, at *2 (D.S.C. Sept. 23, 2013).
Because Plaintiff has filed actions in this court subject to summary dismissal for frivolity, Plaintiff is on notice that any future filings like the present action may result in a pre-filing injunction order by the court in the future as Plaintiff's filings are bordering on abuse of the court's process.
While Plaintiff is not currently a prisoner and not subject to the three strikes provision of 28 U.S.C. § 1915(g), there is a mechanism for a pre-filing injunction court order. See Graham v. Riddle, 554 F.2d 133, 134-135 (4th Cir. 1977); see In Re Rochester, Nos. 11-1931 and 11-7088, 2012 WL 764443 (4th Cir. March 12, 2012)(the Fourth Circuit imposing its own pre-filing injunction).
RECOMMENDATION
It is recommended that the District Court dismiss this case with prejudice and without issuance and service of process. Plaintiff cannot cure the defects identified above by amending his Complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993)). As noted above, this action is frivolous and subject to summary dismissal. Thus, the undersigned recommends the court decline to automatically give Plaintiff leave to amend. See Rufus v. Seymour, 836 Fed.Appx. 155 (4th Cir. Feb. 16, 2021)(unpublished)(affirming the declination of amendment due to frivolity summary dismissal).
Plaintiff's attention is directed to the important notice on the next page.
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).