Opinion
C/A No.: 3:19-1821-JFA-SVH
06-28-2019
Diana Jordan, Plaintiff, v. Brandy Snyder and Denise Mack, Defendants.
REPORT AND RECOMMENDATION
Diana Jordan ("Plaintiff"), proceeding pro se, filed this action against Brandy Snyder ("Attorney") and Denise Mack ("Notary") (collectively "Defendants") concerning the sale of 124 Bakersland Road, Chapin, South Carolina ("Property"). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis [ECF No. 3]. However, even if Plaintiff were to pay the filing fee, the undersigned recommends this matter be dismissed without prejudice and without issuance and service of process. I. Factual and Procedural Background
Plaintiff states on July 2, 2014, a deed for Property was submitted to the Richland County Register of Deeds. [ECF No. 1 at 1]. She states Attorney signed the deed and Notary notarized it. Id. Plaintiff alleges on January 7, 2015, she received a copy of a letter sent by the alleged property owner that stated "while the taxes reflect the selling price, it is not fraud." Id. Plaintiff claims the letter was an admission that the July 2, 2014 deed had been forged. Id. Plaintiff alleges the forged deed violates federal criminal statutes. Id. She asserts Attorney and Notary "conspired to commit forgery which facilitated the illegal transfer of a federal government owned foreclosure property." Id. at 2.
Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or Costs (Form AO-240). [ECF No. 3]. In the Form AO-240, Plaintiff states she is unemployed. Id. at 1. She indicates she receives monthly Supplemental Nutrition Assistance Program benefits in the amount of $353.00. Id. Plaintiff indicates she has $10.00 in a checking or savings account and states she owns a home valued at $120,000 and a vehicle valued at $1,500. Id. at 2. She lists her monthly expenses as $244.11 for electricity, $46.50 for water, and $33.00 for homeowner's association dues. Id. Plaintiff lists one dependent and indicates she has incurred a debt to Richland County, South Carolina, for property taxes. Id. II. Discussion
A. Motion to proceed in forma pauperis
Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts. See Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980). There is no clear precedent in the Fourth Circuit concerning a magistrate judge's authority to issue an order denying an application to proceed in forma pauperis. The Sixth Circuit has concluded that a magistrate judge cannot issue an order to deny an application to proceed in forma pauperis. Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990). Specifically, the Woods court ruled a denial of an application to proceed in forma pauperis by a magistrate judge is the functional equivalent of an involuntary dismissal, which cannot be granted by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A). Id. at 187. The Tenth and Fifth Circuits have reached similar conclusions. See Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); Donaldson v. Ducote, 373 F.3d 622, 623-25 (5th Cir. 2004). Therefore, the undersigned submits a report and recommendation to preserve Plaintiff's opportunity to obtain de novo review by a district judge on objections.
The Fourth Circuit has held that, absent consent to the jurisdiction of the magistrate judge, proper review of a magistrate judge's denial of a motion to proceed in forma pauperis is in the district court. Gent v. Radford Univ., No. 99-1431, 1999 WL 503537, at *1 (4th Cir. July 16, 1999). The court did not specify the standard of review. Id.
A litigant is not required to show she is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However, the "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who . . . would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In Carter v. Telectron, Inc., 452 F. Supp. 939 (S.D. Tex. 1976), the court enunciated three legal tests used to determine whether a person should proceed in forma pauperis under 28 U.S.C. § 1915:
(1) Is the litigant barred from the federal courts by the reason of her "impecunity"?Id. at 943; see also Murray v. Gossett, C/A No. 3:13-2552-CMC-SVH, 2013 WL 5670907, at *2 (D.S.C. Oct. 17, 2013) (adopting and incorporating Report and Recommendation).
(2) Is her access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute her last dollar, or render herself destitute, to prosecute her claim?
Reviewing the information before the court, and considering the tests set forth in Carter, the undersigned recommends the court deny Plaintiff's motion. While Plaintiff indicates she is unemployed, she states she owns an unencumbered home worth $120,000. It, therefore, does not appear Plaintiff will have to choose between abandoning a potentially meritorious claim or foregoing the necessities of life to pay the $400 filing fee. Adkins, 335 U.S. at 339; see also Karahalios v. Horry County Council, C/A No. 4:17-00393, 2017 WL 1223697 (D.S.C. 2017). It also does not appear that paying the fee would render Plaintiff destitute or impose an undue hardship or effectively block Plaintiff's access to the courts.
Plaintiff is a frequent filer of federal lawsuits and has filed at least seventeen federal lawsuits since June 2018. The court granted Plaintiff in forma pauperis status in eight of her cases, and each case was summarily dismissed or recommended for summary dismissal, for failure to state a claim upon which relief may be granted. Plaintiff has repeatedly been informed, through reports and recommendations, that federal courts are courts of limited jurisdiction. Plaintiff, however, persists in filing lawsuits, such as the one currently under review, that are facially inadequate to state plausible federal claims, placing an unreasonable demand on limited judicial resources. The right to proceed in forma pauperis is not without limitations and Plaintiff's continued filing of frivolous cases further supports the denial of her in forma pauperis application. See Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989) ("Abusers of the judicial process are not entitled to sue . . . without paying the normal filing fees.").
B. Complaint
1. Standard of Review
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 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). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
2. Analysis
This is the sixth complaint Plaintiff has filed in this court alleging nearly identical facts and causes of action. See Jordan v. Wilson, C/A No. 3:18-1589-JFA (D.S.C. June 11, 2018); Jordan v. Foldessey, C/A No.: 3:18-2083-JFA (D.S.C. July 27, 2018) ("Jordan II");Jordan v. J.P. Morgan Chase Bank, C/A No. 3:18-2195-JFA (D.S.C. Aug. 18, 2018); Jordan v. J.P. Morgan Chase Bank, C/A No. 3:18 -02280-JFA (D.S.C. Aug. 16, 2018); Jordan v. J.P. Morgan Chase Bank, C/A No. 3:18-2361-JFA (August 24, 2018). Plaintiff brought the same allegations of fraud and conspiracy against Attorney in Jordan II. Just like Jordan II, Plaintiff's current complaint should be summarily dismissed for failure to state a cognizable federal claim.
A district court may take judicial notice of materials in the court's own files from prior proceedings. See United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992) (holding that the district court had the right to take judicial notice of a prior related proceeding).
Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists "and to dismiss the action if no such ground appears." Id. at 352; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-90 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) ("[P]laintiffs must affirmatively plead the jurisdiction of the federal court."). To this end, Fed. R. Civ. P. 8(a)(1) requires that the complaint provide "a short and plain statement of the grounds for the court's jurisdiction[.]" When a complaint fails to include "an affirmative pleading of a jurisdictional basis[,] a federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded." Pinkley, 191 F.3d at 399 (citations omitted). However, if the court, viewing the allegations in the light most favorable to a plaintiff, finds insufficient allegations in the pleadings, the court will lack subject matter jurisdiction. Id.
The two most commonly recognized and utilized bases for federal court jurisdiction are (1) diversity of citizenship pursuant to 28 U.S.C. § 1332; and (2) federal question pursuant to 28 U.S.C. § 1331. The allegations in Plaintiff's complaint do not fall within the scope of either form of this court's limited jurisdiction.
First, the diversity statute, 28 U.S.C. § 1332(a), requires complete diversity of parties and an amount in controversy in excess of $75,000. Complete diversity of parties in a case means that no party on one side may be a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 nn.13-16 (1978). Plaintiff's complaint fails to demonstrate complete diversity of citizenship or to allege an amount in controversy that satisfies the requirement of § 1332(a). Accordingly, the court has no diversity jurisdiction over this case.
Second, the essential allegations contained in Plaintiff's complaint are insufficient to show that the case is one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff does not plead a specific violation of a federal statute or constitutional provision by Defendants, nor is any type of federal question jurisdiction otherwise evident from the face of the pleading. Although Plaintiff states federal jurisdiction exists because Property was in federal foreclosure [ECF No. 1 at 1], such an allegation is insufficient to show that the case arises under federal law.
In addition, Plaintiff's reference to "18 U.S. Code Chapter 25 - counterfeiting and forgery" does not create federal jurisdiction. The sections of Chapter 25 are criminal statutes and generally provide no private cause of action. See Does v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) ("The Supreme Court historically has been loath to infer a private right of action from a 'bare criminal statute' because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group."); Brett v. Brett, 503 F. App'x 130, 132 (3d Cir. 2012) ("[C]riminal statutes do not give rise to civil liability."); Wyman v. Chellis, C/A No. 2:17-2946-RMG-BM, 2018 WL 1801644, at *2-3 (D.S.C. Jan. 30, 2018) (recommending summary dismissal of complaint alleging violations of federal criminal statutes covering forgery of deed), adopted by 2018 WL 1033191 (D.S.C. Feb. 21, 2018). Plaintiff has not identified any provisions of these statutes allowing a private right of action. Moreover, even if a private right of action existed under an applicable statute, Plaintiff has not alleged plausible facts to support a claim.
Further, to the extent Plaintiff is attempting to have Defendants criminally prosecuted, Plaintiff does not have a constitutional right to, or a judicially-cognizable interest in, the criminal prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."); see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) ("[T]he benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its 'substantive' manifestations.").
Because Plaintiff has not shown the court has either diversity or federal question jurisdiction over her claims, her complaint is subject to summary dismissal. Here, Plaintiff cannot cure the deficiencies of her complaint by amending, as Plaintiff cannot establish subject matter jurisdiction through federal question or diversity of citizenship. Accordingly, any amendment Plaintiff may make would be futile. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis [ECF No. 3]. In the event Plaintiff pays the filing fee, the undersigned recommends the district judge dismiss this case without prejudice to file in an appropriate court and without issuance and service of process.
IT IS SO RECOMMENDED. June 28, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).