Opinion
2:23-cv-02067-BHH-MGB
03-20-2024
Lewis Brady, Plaintiff, v. Thomas Holmes, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Lewis Brady (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action seeking relief pursuant to 42 U.S.C. §1983. (Dkt. No. 1.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review this case and submit findings and recommendations to the assigned United States District Judge. For the reasons discussed below, the undersigned recommends that this action be summarily dismissed.
BACKGROUND
On July 5, 2023, the undersigned issued an order severing several unrelated claims from the instant action and limiting the scope of the Complaint (Dkt. No. 1) to Plaintiff's allegations against Defendant Thomas Holmes, an officer with the St. Stephens Police Department. (Dkt. No. 4 at 3-4.) To summarize these allegations, Plaintiff claims that on August 22, 2022, he approached Defendant Holmes “on foot” and reported that members of a gang were pursuing him in their vehicles with the intent to kill him. (Dkt. No. 1 at 3.) Plaintiff also informed Defendant Holmes that the gang had “hijacked” his cell phone with “spyware” so that its members could track his location, access his bank accounts, and prevent him from calling 9-1-1. (Id.) Plaintiff claims that when Defendant Holmes inspected the cell phone, he stated that the device simply did not have any service or Wi-Fi connection. (Id.) Plaintiff disagrees, maintaining that the device showed clear signs of spyware. (Id.) Nevertheless, Defendant Holmes did not believe Plaintiff and eventually offered to have another officer drive Plaintiff home. (Id.) Plaintiff surmises that “racism played a major role” in Defendant Holmes' purported “failure to render aid” because he likely assumed that Plaintiff-a “black male”-was “hallucinating and on drugs.” (Id.) Plaintiff seeks over $1 million in damages based on Defendant Holmes' alleged conduct. (Id.)
By the same order dated July 5, 2023 (Dkt. No. 4), the undersigned informed Plaintiff that the Court could not authorize service of his claims against Defendant Holmes until he submitted a completed set of proposed service documents as required under General Order, In Re: Procedures in Civil Actions Filed by Prisoner Pro Se Litigants, No. 3:07-mc-5014-JFA (D.S.C. Sept. 18, 2007). (Id. at 4.) The undersigned further noted that, even if Plaintiff provided the necessary service documents, his claims against Defendant Holmes were subject to summary dismissal for failure to state a claim upon which relief may be granted. (Id. at 5-6.) Accordingly, in light of Plaintiff's pro se status, the undersigned afforded him an opportunity to submit the outstanding service documents and file an amended complaint with the Court within twenty-one days. (Id.)
Notably, the order warned Plaintiff that if he failed to comply with the undersigned's directions within the time permitted, his case would be subject to summary dismissal. (Id.) The order also emphasized that Plaintiff must advise the Clerk of Court in writing if his address changed for any reason so as to assure that he received any orders issued by the Court. (Id. at 5.) The order explicitly informed Plaintiff that if, as a result of his failure to comply with this instruction, he failed to meet a deadline set by this Court, his case may be dismissed. (Id.) The Clerk of Court then sent Plaintiff a hardcopy of the undersigned's order using the address provided, which was the Hill-Finklea Detention Center in Berkeley County. (Dkt. No. 7.)
On July 13, 2023, Plaintiff filed a set of proposed service documents for Defendant Holmes in compliance with the undersigned's instructions. (Dkt. No. 9.) Plaintiff did not, however, file an amended complaint. Accordingly, the undersigned issued a text order reminding Plaintiff that he still needed to file an amended complaint against Defendant Holmes that cured the pleading deficiencies described in the previous proper form order. (Dkt. No. 10.) The Clerk of Court then sent Plaintiff a hardcopy of the text order, once again using the address for the Hill-Finklea Detention Center. (Dkt. No. 11.) The text order was eventually returned to the Court as undeliverable with a stamp on the envelope stating, “REFUSED, UNABLE TO FORWARD.” (Dkt. No. 12.) Apparently, Plaintiff had been released from the detention center, but did not provide the Court with his new address-despite being informed of his responsibility to do so.
To be sure, the undersigned consulted the Berkeley County Public Index and located a criminal case pending against Plaintiff before the Court of General Sessions; records confirmed that Plaintiff had been released on bond on or around July 7, 2023. See https://www.sccourts.org/casesearch/ (limiting search to Berkeley County, Case No. 2023A0820500126) (last visited March 18, 2024); see also Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (explaining that a federal court may take judicial notice of the contents of its own records, as well as those records of other courts); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (same); Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (explaining that the court may also take judicial notice of factual information located in postings on government web sites).
Nevertheless, the undersigned reviewed Plaintiff's most recent filing (the proposed service documents for Defendant Holmes) and noticed a new a return address on the envelope in which the documents arrived: 1005 Bargain Street, Cross, South Carolina, 29436. (Dkt. No. 9-2.) Accordingly, in an abundance of caution, the undersigned issued another order on July 31, 2023, ordering the Clerk of Court to resend a copy of the initial proper form order (Dkt. No. 4) and subsequent text order (Dkt. No. 10) to Plaintiff at the new address. (Dkt. No. 13 at 2.) The undersigned also directed the Clerk of Court to provide Plaintiff with a blank “Change of Address” form so that he could clarify his current address with the Court. (Id.) The undersigned then granted Plaintiff an additional twenty-one days to file an amended complaint and a completed Change of Address form. (Id.) The undersigned warned Plaintiff that if he did not file an amended complaint that cured the pleading deficiencies discussed in the initial proper form order (Dkt. No. 4) within twenty-one days, the undersigned would recommend that the instant action be dismissed. (Id.) This time, the order was not returned to the Court as undeliverable; however, Plaintiff still did not respond to the undersigned's instructions.
Notwithstanding the above, the Court made one final attempt to locate Plaintiff by reviewing state court records through the Berkeley County Public Index, which listed Plaintiff's most recent address as 626B Highway 6 Moncks Corner, South Carolina 29461. Based on this information, the undersigned issued a text order on October 13, 2024, directing the Clerk of Court to send another Change of Address form to the new location. (Dkt. No. 19.) The text order warned Plaintiff that if he did not complete and return the form to the Clerk of Court within twenty-one days, the instant case would be dismissed for failure to prosecute and comply with an order of the Court pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.) The text order was eventually returned to the Court as undeliverable on November 6, 2023. (Id.)
See https://www.sccourts.org/casesearch/ (limiting search to Berkeley County, Case No. 2023A0820500126) (last visited March 18, 2024).
On January 8, 2024, Plaintiff apparently called the Clerk of Court to inquire about the status of this case; during that call, he provided a verbal update regarding his address: 350 Powell Rd Apt 118 Columbia, South Carolina 29203. The Clerk of Court then remailed the undersigned's most recent text order (Dkt. No. 19) to this new address, along with yet another blank Change of Address form so that Plaintiff could file an accurate address on the record. To date, Plaintiff still has not responded to the undersigned's instructions, and the time to do so has long-since lapsed.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996). The Complaint has been filed 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, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity.
To protect against possible abuses, the court must dismiss any prisoner complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). A complaint is frivolous if it 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 “at any time” under § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). The United States Supreme Court has explained that the statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Id. at 326.
As to failure to state a claim, a complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” as required under Rule 8(a)(2) of the Federal Rules of Civil Procedure. To satisfy this standard, a plaintiff must do more than make conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the court need not accept as true a complaint's legal conclusions). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
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 therefore 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). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure to allege facts that set forth a cognizable claim under Rule 8(a)(2). See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 39091 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Rule 8, Fed. R. Civ. P., for “all civil actions”). The Fourth Circuit has explained that “though pro se litigants cannot, of course, be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985).
DISCUSSION
Despite receiving several opportunities to comply with this Court's instructions, Plaintiff has failed to file a Change of Address form or an amended complaint that cures the deficiencies identified in his initial pleading. While Plaintiff may not have received all of the Court's mailings, the undersigned expressly warned him at the outset of this action that it was his responsibility to keep the Clerk of Court advised in writing if his address changed at any point so as to assure that he received any orders issued by this Court, and that his failure to do so would not be excused. (Dkt. No. 4 at 5.) And although it was Plaintiff's responsibility, the undersigned still made repeated attempts to identify his current address through the available state court records. Nevertheless, Plaintiff has ignored this Court's orders and deadlines, and the undersigned is therefore constrained to recommend dismissal of this action for failure to prosecute and comply with an order of the Court pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962). Moreover, for the reasons discussed below, the Complaint is also subject to summary dismissal for failure to state a claim upon which relief may be granted pursuant to Rule 8(a), Fed. R. Civ. P.
The Court can conclude that Plaintiff, at the very least, received this particular warning because he responded to the undersigned's initial order with proposed service documents for Defendant Holmes. (Dkt. No. 9.)
A civil action under 42 U.S.C. § 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). Thus, to state a claim to relief under § 1983, the 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). Here, Plaintiff seems to contend that Defendant Holmes refused to provide him with police protection based on his race. (Dkt. No. 1 at 3.) The undersigned therefore construes the Complaint's allegations against Defendant Holmes as raising a violation of the Equal Protection Clause pursuant to § 1983. See Hoffman v. Smart-Gittings, No. 9:18-cv-1146-RMG-BM, 2019 WL 8759417, at *10 (D.S.C. Aug. 26, 2019) (“[A]lthough there is no general constitutional right to police protection, the State may not discriminate in providing such protection.”).
The Equal Protection Clause of the Fourteenth Amendment prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Thus, “[t]o succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001); see also Martin v. Duffy, 858 F.3d 239, 252 (4th Cir. 2017) (“The plaintiff must plead sufficient facts to satisfy each of these requirements in order to state a cognizable equal protection claim.”).
Aside from the conclusory statement that Defendant Holmes assumed Plaintiff was “hallucinating and on drugs” because of his race, the Complaint does not provide any indication that Defendant Holmes' purported refusal to “render aid” was “tainted by any race-based motivations” or that Plaintiff was “treated differently from similarly-situated white [individuals].” Waller v. City of Danville, 212 Fed.Appx. 162, 174 (4th Cir. 2006); see also Gibbs v. Wexford Health Sources, Inc., No. 2:20-cv-867, 2021 WL 5986995, at *18 (S.D. W.Va. Sept. 14, 2021) (“A plausible claim asserting racial discrimination requires more than simply showing that the plaintiff belongs to a racial minority; rather, factual allegations tying the unequal treatment to membership in the disfavored race are necessary.”), adopted, 2021 WL 5451775 (S.D. W.Va. Nov. 22, 2021), aff'd, No. 21-7667, 2022 WL 604052 (4th Cir. Mar. 1, 2022); Chapman v. Smith, No. 3:18-cv-597, 2020 WL 5742538, at *5 (E.D. Va. Sept. 24, 2020) (dismissing equal protection claim where plaintiff “offered nothing, aside from his own speculation and subjective beliefs, to indicate that any decision made by [the defendant] was motivated by race in any way, shape, or form, much less that she harbored any animosity towards him because [of his race]”). Consequently, Plaintiff's speculative allegations are insufficient to raise an equal protection claim against Defendant Holmes.
To that end, it is worth noting that a claim based on a “fantastic or delusional” factual scenario may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (noting that examples of frivolous claims include those whose factual allegations are so “wholly fanciful” as to be simply “unbelievable”) (internal quotation marks and citations omitted); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (noting that the plausibility determination is “a contextspecific task that requires the reviewing court to draw on its . . . common sense”). Although the Court need not make this determination here, Plaintiff's claim that a gang “hijacked” his cell phone with “spyware” so that its members could prevent him from calling the police may fall under the purview of frivolousness for purposes of Rule 8(a).
CONCLUSION
For the reasons discussed above, the undersigned RECOMMENDS that this action be summarily dismissed without further leave to amend, as Plaintiff has already had an opportunity to do so. See Britt v. DeJoy, 45 F.4th 790, 798 (4th Cir. 2022); see also Workman v. Morrison Healthcare, 724 F. App'x. 280, 281 (4th Cir. June 4, 2018). The Clerk of Court shall not forward this matter to the United States Marshal Service for service of process at this time.
The Clerk of Court shall send a copy of this Report and Recommendation to Plaintiff using the most recent address he provided the Court: 350 Powell Rd Apt 118 Columbia, South Carolina 29203.
IT IS SO RECOMMENDED.
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 835
Charleston, South Carolina 29402
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).