Opinion
4:23-3847-TLW-TER
08-23-2023
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Travis Washington, Dr. Rechel Anderson, Jasper County Board of Education, Kathryn M. Crews, Cathy Hazelwood, South Carolina Department of Education, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is the nineteenth civil action filed in the recent past by Plaintiff, 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 has a pending action, No. 4:22-cv-318-TLW-TER, and several recently dismissed actions in this court; some of which involve the same factual allegations as the instant action. All of Plaintiff's actions are subject to review for potential summary dismissal as Plaintiff is proceeding pro se and in forma pauperis. The court reviews Plaintiff's complaints under 28 U.S.C. § 1915, which directs the court to summarily dismiss a complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, as well as when monetary relief is sought from a defendant immune from such relief.
Plaintiff alleges a Georgia police report was keyed as a warrant and keyed again into South Carolina law enforcement systems, resulting in her brief detainment in South Carolina after a traffic stop,and allegations that such warrant/arrest record affects her employment opportunities. (ECF No. 1). Plaintiff has already filed multiple actions in 2022 regarding the 2020 and 2021 events alleged. Several defendants from one action, No. 4:22-cv-318-TLW-TER, were authorized for service and Plaintiff is pursuing her civil rights action against those Defendants in No. 4:22-cv-318-TLW-TER. Defendants named both in the instant action and in No. 4:22-cv-318-TLW-TER are Crews(summarily dismissed with prejudice, ECF Nos. 49, 117) and Hazelwood(summarily dismissed with prejudice, ECF Nos. 49, 117). In the Richland County Court of Common Pleas, Plaintiff also sued Defendants Crews, Hazelwood, and the South Carolina Department of Education; that action was dismissed with prejudice in February 2023 after a hearing. No. 2021-CP-40-04462(“Rather than resolve her outstanding legal matters with her daughter or with the Georgia Sheriff, challenge the report provided by the FBI, or utilize the state review process in the DOE's Rule of Governance, Plaintiff filed lawsuits against Defendants and others, claiming the Georgia Sheriff mistakenly classified the case report against her as a felony warrant.”).
The Marlboro County traffic stop remains pending in state court and has not been adjudicated as dismissed or guilty.
Addressing Plaintiff's allegations regarding federal claims, Plaintiff alleges this is an action under 5 U.S.C. § 552 and under 49 CFR 801.56. FOIA applies only to federal government agencies. Cotton v. Adams, 798 F.Supp. 22, 24 (D.D.C. 1992). Defendants are not a federal government agency. Plaintiff fails to state a claim under § 552. Further, under Fed R. Civ. Proc. R. 8, Plaintiff has not plausibly alleged with sufficiency any Privacy Act claim. See 5 U.S.C. § 552a. The regulation 49 C.F.R. § 801.56 is directly related to 5 U.S.C. § 552(b)(6) and is under the heading for the National Transportation Safety Board, which is unrelated to Plaintiff's allegations.
Plaintiff alleges this is an action under 28 C.F.R. § 16.34. This regulation simply provides the procedure for challenging the accuracy of a criminal history record, which is to send challenges directly to the agency that provided the questioned information. Even where charges were dismissed shortly after an arrest, a litigant had no interest, constitutional or statutory, to support expungement of records based on the arrest. Rowlett v. Fairfax, 446 F.Supp. 186 (W.D. Mo. 1978).
Plaintiff alleges this action is under the Fair Credit Reporting Act. Plaintiff's FCRA allegations have been addressed several times in her other lawsuits. The FCRA's purpose is to safeguard against the inaccurate reporting of information on a credit report and against the improper disclosure of a credit report. 15 U.S.C. § 1681. An allegation that an arrest was reported on a person's credit does not give rise to a claim. None of the defendants are a credit reporting agency within the act and even so, credit reporting agencies can lawfully report the record of an arrest. The Act allows even reporting agencies, of which none of the defendants are, to disclose any arrest record or other adverse item less than seven years old. See 15 U.S.C. § 1681c(a ); see also Parker v. Certified Profile, LLC, No. 7:14-CV-37-BO, 2014 WL 3534129, at *1 (E.D. N.C. July 16, 2014)(plaintiff failed to state a claim upon which relief could be granted when arrests challenged were plainly within the seven-year period). Further, there is no private right of action against users of reports. See 15 U.S.C. § 1681m; Reaves v. Dickens, No. 4:22-cv-318-TLW-TER, 2022 WL 2658906, *7 (D.S.C. Apr. 14, 2022).
Plaintiff alleges this is an action under the Privacy Act of 1974. (ECF No. 1 at 2). The Privacy Act of 1974 has only two substantive sections, sections 3 and 7; section 3 is inapplicable here because it only applies to federal agencies. Plaintiff has failed to state a claim under section 7, which “makes it illegal for a governmental agency to deny an individual any right, benefit, or privilege based on the individual's refusal to disclose his or her [social security number]” because the claims do not involve disclosure of social security numbers. Reaves v. Maxton Police Dep't, 2023 WL 2925159, at *3 (E.D. N.C. Feb. 24, 2023), report and recommendation adopted, 2023 WL 2923128 (E.D. N.C. Apr. 12, 2023).
Plaintiff alleges this is an action under § 1983 for violations of the Fourteenth Amendment, which as discussed below is duplicative of numerous other lawsuits. On several occasions via dismissals of her numerous actions, Plaintiff has been informed by the court that repetitious litigation is frivolous, citing the same cases discussed below. See No. 4:23-cv-01911-TLW; No. 4:22-cv-1806-TLW; No. 4:22-cv-3065-TLW, No. 4:22-cv-1868-TLW; No. 3:22-cv-1323-TLW; No. 3:22-cv-1399-TLW; No. 4:22-cv-1024-TLW; No. 4:22-cv-1077-TLW; No. 4:22-cv-1142-TLW; No. 4:22-cv-1023-TLW. Also, Plaintiff has already received the required notice from the court regarding the possibility of Rule 11 sanctions. See No. 4:22-cv-1023-TLW. A “complaint that merely repeats pending or previously litigated claims may be considered abusive, and a court may look to its own records to determine whether a pleading repeats prior claims.” Spencer v. Rhodes, 656 F.Supp. 458, 460 (E.D. N.C. 1987) (internal citations and quotations omitted). “Federal courts have a responsibility to assess the nature of the allegations presented in a civil action and determine whether the plaintiff's motive is to harass and vex the defendants or to seek redress for a legitimate claim.” Johnson v. Edlow, 37 F.Supp.2d 775, 776 (E.D. Va. 1999). When claims arose out of the same facts as the facts in an earlier-filed action, this court dismissed such a complaint where issues raised were directly related to issues in a pending action brought by the same Plaintiff. Davis v. Colleton Cty. Mem'l Libr., No. 2:17-CV-2948-PMD-MGB, 2018 WL 2170338, at *2 (D.S.C. Apr. 12, 2018), report and recommendation adopted, 2018 WL 2149309 (D.S.C. May 10, 2018), dismissed, 2018 WL 6333601 (4th Cir. July 23, 2018); see also, e.g., Reynolds v. Third Circuit Pub. Def. Office, No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted by 2018 WL 1124592 (D.S.C. Mar. 1, 2018). “[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.” Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974 (D.S.C. July 28, 2015) (holding that “the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency”), affirmed by 631 Fed.Appx. 197 (4th Cir. Feb. 4, 2016); Cox v. Cartledge, No. 3:13-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013), adopted by 2013 WL 1401674 (D.S.C. April 8, 2013) (same); Sherron v. Perry, 2016 WL 407303, *2 (W.D. N.C. February 2, 2016) (same). “Because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per curiam). As to much of Plaintiff's numerous actions concerning a Georgia warrant and South Carolina arrest, the Fourth Circuit states the rule against claim splitting “prohibits a plaintiff from prosecuting its case piecemeal and requires that all claims arising out of a single wrong be presented in one action.” Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 635 (4th Cir. 2015)(quoting Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 Fed.Appx. 256, 265 (4th Cir.2008))(emphasis added). The rule against claim splitting is a corollary to the principle of res judicata. Id. at 635. It is undisputed that it is within a district court's power dismiss a suit that is duplicative of another federal court suit. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
The instant action, the twelfth lawsuit concerning Plaintiff's Georgia warrant and South Carolina arrest, is duplicative and frivolous. Plaintiff specifically alleges “the claims arise from an August 2021 incident” in which Plaintiff alleges SLED reported a Georgia warrant that was not a warrant. (ECF No. 1 at 2). Allegations here regarding § 1983 are the same as against educational defendants in 4:22-cv-318-TLW-TER where educational defendants were summarily dismissed. Plaintiff alleges here and in the prior action that Defendants denied her a teacher certification, which she alleges is a denial of rights to life, liberty, and pursuit of happiness. (ECF No. 1 at 14). The court repeats its reasoning for summary dismissal from No. 4:22-cv-318-TLW-TER, which remains applicable:
As to Plaintiff's liberally construed § 1983 claims under the Fourth and Fourteenth Amendments against educational defendants(school district and department of education employees), constitutional due process rights are only at issue when there is a deprivation of a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974);
Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). It does not appear under the facts alleged that Plaintiff has pleaded a deprivation of a protected liberty interest in her application for a South Carolina teaching certificate as to Defendants who are employees of the South Carolina Department of Education. “A property interest requires more than a ‘unilateral expectation'”; instead, there must be a “legitimate claim of entitlement.” Biser v. Town of Bel Air, 991 F.2d 100, 104 (4th Cir.1993); see also Harmon v. Cumberland Cnty Bd. Of Educ., 186 F.Supp.3d 500, 510 (E.D. N.C. 2016)(finding as to due process concerns, plaintiff there did not possess a cognizable property interest in her teaching license); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972)(finding no property interest in university reemployment); Shirer v. Anderson, 88 F.Supp. 858, 862 (E.D.S.C. 1950)(“the teacher's certificate relates only to the right to teach in the service of the state; and it cannot be a denial of due process for the state to provide for revocation of such certificate by administrative action without provision for judicial review”). Plaintiff has failed to allege a claim upon which relief could be granted.No. 4:22-cv-318-TLW-TER (ECF No. 49). All of the fifteen education defendants in No. 4:22-cv-318-TLW-TER were summarily dismissed with prejudice after discussion and explanation. Plaintiff cannot continue to react to orders in No. 4:22-cv-318-TLW-TER or other cases by filing new actions. See 4:23-cv-1911-TLW. In the partially served case, No. 4:22-cv-318-TLW-TER, Plaintiff's “Motion to Consolidate” filed in March 2023 was an attempt to add additional claims and parties similar to the instant action; this motion was construed as a Motion to Amend and denied because the Motion was untimely and had not addressed the good cause standard. No. 4:22-cv-318-TLW-TER(ECF No. 230 at 5). Plaintiff cannot circumvent orders in No. 4:22-cv-318-TLW-TER by filing several duplicative and repetitive actions which have been found to be frivolous.
Plaintiff's Motion in the partially served action stated: “Plaintiff would like to add claims against the South Carolina State Department of Education....in violation of the Fair Credit Reporting Act, 5 U.S.C. § 552 and the Privacy Act of 1974.” No. 4:22-cv-318-TLW-TER (ECF No. 206 at 3). Plaintiff's allegations as to the FCRA, 5 U.S.C. § 552, and the Privacy Act of 1974 had already been squarely addressed in the summary dismissal in that case. No. 4:22-cv-318-TLW-TER(ECF No. 49).
In the instant action, Plaintiff makes allegations regarding state law claims: SCTCA, municipal and supervisory liability, conspiracy, constitutional tort, negligent hiring and retention, respondeat superior, state law discrimination, and breach of contract. (ECF No. 1 at 18-27). These same state law claims were addressed by the state court and found to fail to state a claim upon which relief can be granted. Likewise, Plaintiff fails to state claims upon which relief can be granted as to the same claims here. Additionally, finality principles of res judicata bar Plaintiff' from pursuing education defendants for the same state law claims from state court in this federal court. “Under the doctrine of res judicata, or claim preclusion, ‘[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.' ” Providence Hall Assocs. Ltd. P'ship v. Wells Fargo Bank, N.A., 816 F.3d 273, 276 (4th Cir. 2016)(internal citations omitted). “[T]here must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits.” Id. Plaintiff litigated the exact same state law claims in state court as Plaintiff alleges here to a final judgment on the merits. Defendants Washington (human resources for Jasper County Board of Education), Anderson (superintendent of Jasper County Board of Education), and Jasper County Board of Education were not defendants in the state court action; however, Plaintiff pleads that Jasper County Board of Education acted through the South Carolina Department of Education who is a Defendant in both actions. (ECF No. 1 at 5). Based on Plaintiff's allegations, it appears Defendants, only in this factual circumstance, are privies. See also Nash Cnty. Bd. of Ed. v. Biltmore Co., 640 F.2d 484, 494 (4th Cir. 1981)(finding school district and attorney general in privity). Even if res judicata did not apply, Plaintiff fails to state a claim upon which relief could be granted as to the state law claims here for the same reasons as the same state law claims were dismissed by the state court. See No. 2021-CP-40-04462(Richland County). Further, any state law claims cannot be the basis for subject matter jurisdiction in this court because there is no complete diversity.
Plaintiff has failed to state a claim upon which relief can be granted and this action is subject to summary dismissal for all the foregoing reasons.
PREFILING INJUNCTION:
Plaintiff is a serial filer before this court and other federal courts. In light of Plaintiff's continuous frivolous filings, this Court considers the imposition of a pre-filing injunction in this court, tailored to Plaintiff's circumstances and filing proclivities. District courts have the inherent power to control the judicial process and to redress conduct that abuses that process. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). When a litigant demonstrates a “continuous abuse of the judicial process by filing meritless and repetitive actions,” a court is authorized to exercise its authority to employ appropriate sanctions on that litigant. Cromer v. Kraft Foods N. Am. Inc. 390 F.3d 812, 818 (4th Cir. 2004). Prior to authorizing a limitation on filing, a court must weigh the following factors:
(1) the party's history of litigation, in particular whether [s]he has filed vexatious, harassing, or duplicative lawsuits;
(2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass;
(3) the extent of the burden on the courts and other parties resulting from the party's filings; and
(4) the adequacy of alternative sanctions.Id.
These factors are meant to assist the court in determining the likelihood that the litigant will “continue to abuse the judicial process and harass other parties.” Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). In crafting a sanction, courts “must ensure that the injunction is narrowly tailored to fit the specific circumstances at issue.” Cromer, 390 F.3d at 818.
As to first Cromer factor, Plaintiff's history of litigation, especially where vexatious, harassing, or duplicative, as discussed above, the majority of actions filed in this court and summarily dismissed in the last two years have involved the same set of facts and similar and/or same defendants. See Nos. 3:22-cv-1399-TLW; 4:22-cv-3065-TLW; 4:22-cv-1868-TLW; 4:22-cv-1806-TLW; 3:22-cv-1323-TLW; 4:22-cv-1023-TLW; 4:22-cv-318-TLW-TER(the only action partially served involving the Georgia warrant and South Carolina arrest allegations); see also No. 4:22-cv-1077-TLW; No. 4:22-cv-1142-TLW; No. 4:22-cv-1024-TLW (three actions against attorneys and firms involved in No. 4:22-cv-318-TLW-TER). The remainder of Plaintiff's actions in the recent past, not involving allegations about the Georgia warrant and South Carolina arrest, also have been summarily dismissed. See Nos. 4:22-cv-1150-TLW; 4:22-cv-2650-TLW; 4:22-cv-2799-TLW; 4:22-cv-3181-TLW; 4:22-cv-856-TLW; 4:22-cv-453-TLW.
As to the harassing and vexatious nature of Plaintiff's actions, Plaintiff has sued law firms and attorneys associated with No. 4:22-cv-318-TLW-TER, the one case that was authorized for partial service. Those actions of a harassing and vexatious nature were No. 4:22-cv-1077(Plaintiff sued Robert Woods, IV, The Wilcox Law Firm, Aiken Bridges, and Thompson & Henry PA for allegedly “trashing” Plaintiff in their Answer; the action was dismissed with a Rule 11 sanction warning and as frivolous); No. 4:22-cv-1024-TLW(where Plaintiff sued The Wilcox Law Firm and J. Scott Kozacki and alleged defendants were harassing her by mailing their court filings as required in Plaintiff's other pending actions; Plaintiff's action was dismissed as frivolous); No. 4:22-cv-1142-TLW (the third action against: “The Wilcox Law Firm, ” Aiken Bridges, and Thompson & Henry where Plaintiff alleged attorneys would not stop filing responses to her filings; Plaintiff's allegations were found to be irrational and frivolous and Plaintiff was warned Plaintiff would be sanctioned in the future if the course of malicious and frivolous litigation continued). This is but three examples of Plaintiff's vexatious and harassing filings and not an all-inclusive discussion. The first Cromer factor weighs heavily in favor of the imposition of a prefiling injunction.
Plaintiff also sued some of the Defendants in the instant action, Defendants Crews, Hazelwood, and South Carolina Department of Education in No. 4:22-cv-1142-TLW.
As to Plaintiff's history of litigation, the instant action is the nineteenth action filed in the recent past in this court. Plaintiff also repeatedly pursues claims she has pursued in this court in other federal courts in Georgia. In the Southern District of Georgia, Plaintiff filed an action against Defendants Foster, Roundtree, and Hucko, similar to District of South Carolina cases No. 4:22-cv-1868-TLW, No. 4:22-cv-318-TLW-TER. See No. 1:21-cv-00120-JRH-BKE(S.D.Ga.).
In June 2023, in the Northern District of Georgia, Plaintiff filed an action against Defendants NLES, Hucko, Sutton, Foster, Medlin, Clark, and numerous boards of education, similar to District of South Carolina cases No. 4:22-cv-1868-TLW, No. 4:22-cv-318-TLW-TER, 4:22-cv-03065-TLW, 4:22-cv-01806-TLW, regarding her arrest in South Carolina in November 2021 and regarding Hucko and Foster's alleged involvement in taking a police report over the phone that Plaintiff alleges was keyed as a warrant. See No. 1:23-cv-2836-LMM(N.D.Ga.). Court orders in that Georgia case noted Plaintiff was “far from a novice” and advised Plaintiff to “heed its prior instruction regarding the contents and organization of her amended complaint.” No. 1:23-cv-2836-LMM(N.D.Ga.). In March 2023, Plaintiff filed an action against Clayton County schools and Clark, similar to District of South Carolina cases Nos. 4:22-cv-318-TLW-TER, 4:22-cv-03065-TLW, 4:22-cv-01806-TLW. See No. 1:23-cv-1082-LMM-JEM(N.D.Ga.). That Georgia action “seeking to litigate claims that allege substantially the same facts arising from a common series of events-namely, the issuance of a Georgia warrant for Plaintiff's arrest for felony identity theft, her subsequent arrest in South Carolina, and her alleged inability now to pass a background check, which has resulted in her being denied employment” was dismissed under § 1915(e)(2)(B)(1) because Plaintiff needed to pursue all of her claims in one action, that particular action in the North District of Georgia being No. 1:22-cv-4764-LMM-JEM(N.D.Ga.).
The Northern District of Georgia took judicial notice of the many lawsuits filed in the District of South Carolina of similar claims and of an exhibit where Plaintiff stated “the lawsuits will not stop” until her requests are granted. See No. 1:23-cv-1082-LMM-JEM(N.D.Ga.). In February 2023, Plaintiff filed an action against Hucko, Foster, Sutton, and Richmond County, similar to District of South Carolina actions Nos. 4:22-cv-1868-TLW and No. 4:22-cv-318-TLW-TER. See No. 1:23-cv-00778-LMM(N.D.Ga.). In December 2022, Plaintiff sued multiple county education entities, GBI, Richmond County, Melvin, Blanchard, Hucko, Clark, Foster, and Sutton similar to District of South Carolina cases Nos. 4:22-cv-1868-TLW, No. 4:22-cv-318-TLW-TER, 4:22-cv-03065-TLW, and 4:22-cv-01806-TLW. See No. 1:22-cv-4765-LMM(N.D.Ga.)(taking judicial notice of the many lawsuits filed in the District of South Carolina presenting similar claims, citing to Nos. 4:22-cv-3065-TLW; 4:22-cv-1806-TLW; 4:22-cv-639-TLW; and 4:22-cv-318-TLW-TER, and finding “repetitive filing of lawsuits over the same conduct may result in dismissal or other sanctions.”).
In December 2022, Plaintiff sued multiple county education entities, GBI, Richmond County, Melvin, Blanchard, Hucko, Clark, Foster, and Sutton similar to District of South Carolina cases Nos. 4:22-cv-1868-TLW, 4:22-cv-318-TLW-TER, 4:22-cv-03065-TLW, and 4:22-cv-01806-TLW. See No. 1:22-cv-4764-LMM(N.D.Ga.)(noting Plaintiff filed many lawsuits in the District of South Carolina concerning some of the transactions in the complaint, warning of sanctions, and dismissing under 1915(e)). In September 2021, Plaintiff had filed an action against Clayton County schools, similar to District of South Carolina cases Nos. 4:22-cv-03065-TLW and 4:22-cv-01806-TLW, which the Northern District of Georgia dismissed for failure to file an amended complaint. See No. 1:21-cv-3882-LMM(N.D.Ga.).
As to the second Cromer factor whether the party had a good faith basis for pursuing the litigation, or simply intended to harass, Plaintiff had the opportunity to pursue claims which surpassed summary dismissal with the partial service of No. 4:22-cv-318-TLW-TER, yet Plaintiff continued to file the same claims against the same and similar defendants in this court and another federal district court, not to mention state court actions. The Northern District of Georgia took judicial notice of the many lawsuits filed in the District of South Carolina of similar claims and noted an exhibit where Plaintiff stated “the lawsuits will not stop” until her requests were granted. No. 1:23-cv-1082-LMM-JEM(N.D.Ga.); No. 1:22-cv-4764-LMM(N.D.Ga.). It is evident that the duplicative and repetitive actions filed by Plaintiff do not evince a good faith basis for pursuing claims about the same sets of facts against the same and similar defendants Plaintiff has already pursued. Considering the totality of the cases filed in Georgia, in this district, and in state court, the court has lost count how many times Plaintiff has sued about the Georgia warrant and the South Carolina arrest and resulting effects on employment. Bringing virtually the same claims against same or similar defendants is “a form of harassment.” Elliot v. Chairman of United States Merit Sys. Prot. Bd., 2020 WL 973752, at *9 (E.D. Va. Jan. 17, 2020). The second factor weighs against Plaintiff and in favor of the imposition of a prefiling injunction. There is no good faith basis for believing that Plaintiff's arguments will become meritorious simply because she raises them repeatedly and in different proceedings.
As to the third Cromer factor of the extent of the burden on the courts and other parties due to Plaintiff's filings, nineteen cases, all of which except one have been entirely summarily dismissed, has placed a significant burden on the court. Valuable time has been spent processing Plaintiff's cases and a district court judge has reviewed Plaintiff's frivolous actions and drafted further orders of dismissal. Green v. Prince George's Cnty. Off. of Child Support, 641 B.R. 820, 843 (D. Md. 2022), aff'd, 2023 WL 3051812 (4th Cir. Apr. 24, 2023). Limited resources of the court “should not have to be spent again and again dealing with” Plaintiff's repetitious and frivolous actions. Id. Repeatedly filing new civil actions based upon the same or similar claims and/or set of facts as those that have been dismissed simply because plaintiff has failed to obtain relief favors the imposition of a prefiling injunction in weighing the third Cromer factor. Feather-Gorbey v. Warden, FCI Beckley, 2022 WL 351674, at *5 (S.D. W.Va. Feb. 4, 2022), aff'd sub nom. 2023 WL 4557477 (4th Cir. July 17, 2023), and aff'd sub nom., 2023 WL 5032785 (4th Cir. Aug. 8, 2023). “While the court accepts its burden of separating wheat from ever increasing chaff, such practices of litigants strain the limited resources of the court system.” Haggins v. Tarwater, 2013 WL 1319400, at *2 (W.D. N.C. Mar. 29, 2013). Meritless lawsuits by their nature waste “time, energy, and resources.” See Doe v. Crouch, 2023 WL 2711632, at *7 (S.D. W.Va. Mar. 30, 2023), aff'd, 2023 WL 4839360 (4th Cir. July 28, 2023). The third Cromer factor weighs in favor of the imposition of a pre-filing injunction.
Where a plaintiff had never been previously warned by the court and only two lawsuits has been filed regarding the same claims, Cromer was not satisfied and Defendants' motion for sanctions was granted; our facts here are entirely inapposite. Harr v. North Carolina, 2014 WL 2212169, at *9 (M.D. N.C. May 28, 2014), aff'd, 588 Fed.Appx. 285 (4th Cir. 2014).
As to the fourth Cromer factor of existence and adequacy of less restrictive sanctions, repeated summary dismissals and explanations as to each of those dismissals and the court's warnings regarding future Rule 11 sanctionshave proved inadequate as Plaintiff continued filing repetitive actions. “A fine is an inadequate sanction due to indigency.” Feather-Gorbey v. Warden, FCI Beckley, 2022 WL 351674, at *6 (S.D. W.Va. Feb. 4, 2022). A finding of contempt is likely also deficient and unlikely to deter Plaintiff where a litigant persistently litigates the same set of facts repeatedly despite summary dismissals and directives from the court. Elliot v. Chairman of United States Merit Sys. Prot. Bd., 2020 WL 973752, at *10 (E.D. Va. Jan. 17, 2020). The imposition of a prefiling injunction is the appropriate sanction to prevent further abuse of the federal judicial system. Thus, the fourth Cromer factor is satisfied.
See In re Williams, 2022 WL 4758403, at *1 (4th Cir. Oct. 3, 2022)(considering a clear escalation of warnings in affirming an imposition of filing limitations).
Each Cromer factor weighs in favor of the imposition of a prefiling injunction upon Plaintiff. In light of this court's analysis, it is recommendedthat this court impose a narrowly tailored pre-filing injunction on Plaintiff requiring her to obtain leave of court by filing a Motion with required attachments as laid out below, pay the filing fee in full, or obtain representation of counsel to file new actions related to any event regarding the Georgia warrant and 2021 South Carolina arrest in Marlboro County and its effect on Plaintiff's credit report and employment.This satisfies Cromer as it is narrowly drawn to a specific set of facts and those facts relate directly to the repetitive, duplicative filings. This recommended injunction would affect Plaintiff's ability to file future civil actions and does not serve to dismiss other pending matters. A prefiling injunction should issue under “exigent circumstances, such as a litigant's continuous abuse of the judicial process by filing meritless and repetitive actions.” Cromer, 390 F.3d at 818.
Plaintiff's opportunity to file objections to this report and recommendation satisfies the opportunity to show cause why this court should not impose a prefiling injunction as discussed above and affords Plaintiff a notice and opportunity to be heard before the injunction is issued in compliance with Cromer, 390 F.3d at 819. The Fourth Circuit has deemed notice sufficient when a litigant is given “proper notice of the magistrate's recommendations and ample opportunity to register his objections” before the injunction was imposed. Joyner v. Riley, 1988 WL 131841, at *1 (4th Cir. Dec. 2, 1988) (unpublished).
The state court advised Plaintiff that she could have and had not challenged through regulatory processes the report provided by the FBI or utilize the state review process in the Department of Education's Rule of Governance. See No. 2021-CP-40-04462(Richland County).
It is recommended that if the prefiling injunction is found by the district judge to be warranted, Plaintiff be ordered to accompany any new complaint with a “Motion for Leave to File Pursuant to Court Order,” which should not exceed twenty pages in length, and shall be forwarded to the undersigned for determination as to whether leave to file shall be granted and the Plaintiff's Motion shall be accompanied by: (1) a copy of the district judge's pre-filing injunction Order, (2) a statement from Plaintiff that the claims or relief sought are unrelated to the subject matter prohibited as outlined above, (3) a short and plain statement setting forth a valid basis for the claims or relief sought; and (4) a statement that the claims or relief sought either have or have not been raised before in other litigation, and if the claims/relief have been previously raised, then Plaintiff must provide the name of the case, the court where it was filed, the case number, and the disposition of the claims. Failure to comply with any of these requirements is a sufficient ground for the Court to deny a “Motion for Leave to File Pursuant to Court Order” submitted by Plaintiff.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case pursuant to § 1915(e) with prejudice and without issuance and service of process. After time for objections has run, it is recommended that a narrowly tailored prefiling injunction be issued as specifically discussed above and in regards to any new complaint, Plaintiff be ordered to file a “Motion for Leave to File Pursuant to Court Order” with the accompanying requirements as discussed above.
See Michau v. Charleston Cty., 434 F.3d 725, 728 (4th Cir. 2006) (affirming the district court's dismissal of two complaints pursuant to § 1915(e)(2)(B), even though the plaintiff was not a prisoner, because the plaintiff was proceeding in forma pauperis).
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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).