Opinion
C. A. 8:23-841-TLW-SVH
03-31-2023
Betty Gallman and Ricardo Dewalt, Plaintiffs, v. Newberry Sheriff's Department, Newberry County Court, Newberry Post Office, Newberry County Jail, and Louis Rich, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
It appears Betty Gallman (“Ms. Gallman”) is attempting to bring suit either on behalf of herself and Ricardo Dewalt (“Mr. Dewalt”) (collectively “Plaintiffs”) or on behalf of Mr. Dewalt alone, against Newberry Sheriff's Department, Newberry County Court, Newberry Post Office, Newberry County Jail, and Louis Rich (collectively “Defendants”).Pursuant to 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 the complaint for relief and submit findings and recommendations to the district judge.
The evidence suggests Ms. Gallman is the complainant, but it is unclear whether she is proceeding as a plaintiff or is only attempting to file the case on Mr. Dewalt's behalf. The complaint identifies Ms. Gallman and Mr. Dewalt as plaintiffs. [ECF No. 1 at 1 (listing “Betty Gallman” and “Ricardo Dewalt” in the caption) and 2 (listing “Betty Gallman/Ricardo Dewalt” as “The Plaintiff(s)”)]. The spot on the complaint form for “Signature of Plaintiff” reads “Betty Gallman/Ricardo Dewalt” in what appears to be the same handwriting. Id. at 12. Ms. Gallman's name is included with the return address on the mailing envelope. [ECF No. 1-1 at 1]. The application to proceed in district court without prepaying fees or costs includes the same signature as the complaint form. [ECF No. 2 at 2].
Ms. Gallman filed a complaint for violation of civil rights form on March 1, 2023. [ECF No. 1]. She referenced case number 2022-A-3610100475. Id. She indicated she was bringing claims pursuant to both Bivens v. Six Unknown NamedAgents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. In response to the question as to the federal constitutional or statutory rights she claimed were violated under § 1983, Ms. Gallman wrote “Newberry Country Solicitor, Newberry Post Office, Newberry Jail, Public Denfer” [sic]. Id. at 4. In response to the question as to which constitutional rights she claimed were violated by federal officials, Ms. Gallman wrote “white trailer park, Newberry court school staff.” Id. In response to the question as to whether she was a prisoner or confined person, Ms. Gallman checked boxes for “[p]retrial detainee,” “[c]ivilly committed detainee,” and “[c]onvicted and sentenced state prisoner. Id. at 4-5.
The Newberry County Detention Center's website reflects that Mr. Dewalt was arrested on July 22, 2022, on multiple charges and remains incarcerated at the facility. https://www.newberrycounty.net/departments/sheriffs-office/newberry-county-detention-center/inmate-search (last visited March 30, 2023). Ms. Gallman's name does not appear in the inmate search. See id. A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
In addition to the complaint, Ms. Gallman filed a motion to proceed in district court without prepaying fees or costs.[ECF No. 2]. The form includes “Betty Gallman/Ricardo Dewalt” on the line above “Plaintiff/Petitioner:” and on the line for “Applicant's signature.” Id. at 1, 2. It appears Ms. Gallman completed the form. She indicated one or both plaintiffs is or are incarcerated. Id. at 1. She included no specific information about income or wages, but stated: “I on a fix income[.] I call Legal Assistance for over 6 mos[.] No help[.] Lawyer No help.” Id. She represented she has no money in cash or a checking or savings account and is “still pay[ing] on” any automobile, real estate, or other item of value that she owns. Id. at 2. She stated she had monthly expenses related to “where I stay at.” Id. She attached a financial certificate for the District of South Carolina that bears a signature for Mr. Dewalt. [ECF No. 2-1]. However, it is not completed and does not have an authorized officer's signature. Id.
Pursuant to 28 U.S.C. § 1915, the court construes the application to proceed in district court without prepaying fees or costs as a motion for leave to proceed in forma pauperis. See 28 U.S.C. § 1915.
On March 6, 2023, the undersigned issued an Order and Notice identifying deficiencies in Plaintiffs' complaint and permitting them time to file an amended complaint. [ECF No. 8]. The undersigned contemporaneously issued a proper form order advising Plaintiffs of the requirements that they both sign the complaint form, either pay the court's filing fee or each file an application to proceed in district court without prepaying fees or costs, and complete documents required for issuance and service of process. [ECF No. 7]. Both orders advised Plaintiffs that failure to comply by March 27, 2023, may result in dismissal of the case for failure to prosecute and failure to comply with a court order under Rule 41 of the Federal Rules of Civil Procedure. [ECF Nos. 7 at 2 and 8 at 9].
It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. Plaintiffs have failed to file an amended complaint or remedy the other deficiencies identified in the proper form order. As such, it appears they wish to abandon this action. Based on the foregoing, the undersigned recommends the court dismiss the case for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41.
The undersigned further recommends the court deny Plaintiffs' motion to proceed in forma pauperis. As explained in the proper form order, to the extent Ms. Gallman was attempting to file a civil action on her own behalf, her motion to proceed in forma pauperis should have included representations as to her financial status and her signature alone. If Mr. Dewalt was intending to file a motion to proceed in forma pauperis, he should have included only his financial representations and signature. See Fed.R.Civ.P. 11(a) (“Every pleading, written motion, or other paper must be signed by . . . a party personally if the party is unrepresented.”).” Id.
For the foregoing reasons, the undersigned recommends the court deny the motion to proceed in forma pauperis and dismiss the matter without prejudice.
IT IS SO RECOMMENDED.
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 901 Richland Street Columbia, South Carolina 29201
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).