Opinion
No. 5:20-CV-680-M
01-26-2021
MICHAEL WAYNE HILL, Plaintiff, v. FREEDOM MORTGAGE CORP, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). On January 6, 2021, the court ordered Plaintiff to supplement his complaint to include a short and plain statement of the facts that form the basis of his claims. [DE-4]. On January 26, 2021, Plaintiff supplemented his complaint. [DE-8]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed for failure to state a claim.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "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 v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition . . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
According to the complaint, Plaintiff resides in Florida, and Defendant is located in New Jersey. [DE-1-1] at 1. Plaintiff states that his complaint is "for Estate Process—Manipulation." Id. at 2. When prompted by the form complaint to state the basis of this court's jurisdiction, Plaintiff stated, "G.S. 15-14 NOTICE OF SALE." Id. Plaintiff alleges further: "[t]he mortgage company gave no consideration to the obligation of the oldest man residing in the home at the time of the owner's death. October 2013[.] October 2019." Id. Plaintiff seeks relief "in the amount of the estimated property value of $200,000." Id. at 3.
The supplement to the complaint states that the basis of jurisdiction is fraud and the property at issue is located in Oak City, North Carolina. [DE-8] at 2. Plaintiff alleges: "The owner died on October 1st of 2013. His wife and possessions were evicted on November 27th of 2019." Id. Plaintiff further states:
I, Michael Wayne Hill, the oldest male residing in the house at the time of the owner[']s death and without releasing my legal obligations am obligated to the precurment [sic] of his wife and possession. Myself, his wife and possession were manipulated throught [sic] the estate process that included home inva[s]ion and medical misconduct. [A]t this time his wife is without his possessions and I am cla[i]ming intentions. I clame [sic] in factual statement without reciting statute, I would like an evident[i]ary process. I first blame the defend[a]nt in this case.Id. at 3-4.
Plaintiff has failed to state a claim for which relief may be granted. He alleges that jurisdiction is based upon fraud, but he includes no facts in support of that claim. In order to state a claim for fraud under North Carolina law, a plaintiff must plead with particularity facts showing (1) a false representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Forbis v. Neal, 361 N.C. 519, 526-27, 649 S.E.2d 382, 387 (2007).
Plaintiff does not allege any of the elements of fraud. He does not allege that Defendant made a false representation or concealed a material fact. In fact, Plaintiff does not allege that Defendant did anything wrongful at all; he alleges that there was an eviction, manipulation of the estate process, a home invasion, and medical misconduct, and he blames Defendant for the fact that the homeowner's wife is without his possessions, but it is not alleged that Defendant acted in any way.
Moreover, Plaintiff has failed to show that he was injured. He states that as the oldest man living in the house at the time of the previous owner's death, he was entitled to the "precurment" of the previous owner's wife and possessions. That allegation is frivolous and lacks an arguable basis in law. Accordingly, it is recommended that the complaint be dismissed.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiff's complaint be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until February 9, 2021, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 26 day of January, 2021.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge