Opinion
C/A: 3:20-719-JMC-SVH
11-09-2022
Viresh M. Sinha, Plaintiff, v. Henry McMaster, Christy Hall, Robert G. Woods, IV, James H. Lucas, and Harvey S. Peeler, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, MAGISTRATE JUDGE
Viresh M. Sinha (“Plaintiff”), proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983, alleging South Carolina Governor Henry McMaster, Secretary of Transportation Christy Hall, Acting Director of the South Carolina Department of Public Safety Robert G. Woods, IV, Speaker of the South Carolina House James H. Lucas, and President of the South Carolina Senate Harvey S. Peeler (collectively “Defendants”) violated his constitutional rights. Pursuant to the provisions of 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 such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis and dismiss the complaint with prejudice.
I. Factual and Procedural Background
Plaintiff is a citizen of South Carolina who alleges Defendants have violated his rights to due process, health, and safety under the Fourteenth Amendment. [ECF No. 1 at 1-3]. He maintains research shows that traffic fatalities in South Carolina increased by 5.1% from 2017 to 2018. Id. at 4, 5. He claims the plan adopted by the South Carolina government to address traffic fatalities lacks specific actions targeted to address the problem. Id. at 5. He maintains the state has incurred economic loss and individuals have been injured and killed because state government has not adequately addressed traffic safety. Id.
Plaintiff requests the court order the state to take prompt action to improve traffic safety and to create a detailed plan to address the problem. Id.
II. Discussion
A. Standard of Review
Plaintiff filed his complaint 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. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint 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 under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
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).
B. Analysis
1. Denial of Motion of 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 he is completely destitute in order to qualify as 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 his “impecunity”?
(2) Is his access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute his last dollar, or render himself destitute, to prosecute his claim?
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).
Plaintiff submitted a short form application to proceed in district court without prepaying fees or costs (“Form AO 240”). [ECF No. 4]. In the Form AO 240, Plaintiff states he is unemployed and denies having other sources of income. Id. at 1. He states he has $1,100 in cash or in a checking or savings account, a BMW valued at $19,200 with a $9,600 lien, and approximately $30,000 in inventory from a prior business. Id. at 2. He claims his monthly expenses include $775 for rent, $150 for utilities, $125 for car insurance, $150 for gas and groceries, and $648 for child support. Id. He admits he has approximately $40,000 in credit card and other miscellaneous debt. Id.
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 he is unemployed, he also indicates he has substantial assets that include approximately $30,000 in inventory from a prior business. See ECF No. 4. 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. Therefore, the undersigned recommends the court deny Plaintiff's motion to proceed in forma pauperis.
Independently, the court notes if Plaintiff' were to pay the filing fee, his case would be subject to summary dismissal on its merits.
2. Plaintiff Lacks Standing to Bring Suit
Plaintiff files his complaint pursuant to 42 U.S.C. § 1983. Section 1983 is the procedural mechanism through which Congress provided a private civil cause of action based on allegations of federal constitutional violations by persons acting under color of state law. The purpose of § 1983 is to deter state actors from using badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.
To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he was injured by “the deprivation of any [of his] rights, privileges, or immunities secured by the [United States] Constitution and laws” by a “person” acting “under color of state law.” See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). Thus, a plaintiff in a case brought pursuant to § 1983 must sufficiently allege that he incurred a specific injury. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (holding a § 1983 plaintiff must show that he suffered a specific injury as a result of specific conduct of a defendant, and an affirmative link between the injury and that conduct). He must also allege a causal connection or affirmative link between the conduct of which he complains and the officials sued. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“In order for an individual to be liable under § 1983, it must be ‘affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.'”) (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)).
Plaintiff makes only a conclusory statement that Defendants have violated his rights under the Fourteenth Amendment. To invoke the Fourteenth Amendment's due process guarantees, a plaintiff must show that the state deprived him of a protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). He fails to allege that he suffered a specific injury as a result of Defendants' alleged violations of the Fourteenth Amendment.
To the extent Plaintiff's complaint may be construed to allege injury as a taxpayer, the undersigned recommends the court find he lacks standing to bring such a claim. Pursuant to Article III of the Constitution, federal courts may exercise jurisdiction over cases and controversies. Ansley v. Warren, 861 F.3d 512, 517 (4th Cir. 2017). To invoke the federal court's jurisdiction, a plaintiff is required to show he has standing to bring the case or controversy before the court. Id. The Fourth Circuit recently explained:
To demonstrate standing, a plaintiff must prove that he has suffered a “concrete and particularized” injury that is “fairly traceable to the challenged conduct of the defendant” and is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In other words, a party's “keen interest in the issue” is insufficient by itself to meet Article III's requirements. Hollingsworth v. Perry, 570 U.S. 693, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). “[C]oncerned bystanders” may not marshal the judiciary as a “vehicle for the vindication of value interests”-the exercise of judicial power is restricted to litigants who seek to rectify a personal and discrete harm. Id. at 2663 (quoting Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)).
Id. “The Supreme Court has repeatedly held that a taxpayer's interest in ensuring that collected funds are spent in accordance with the Constitution is ‘too generalized and attenuated' to confer Article III standing.” Id. at 518 (citing Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 599 (2007) (plurality opinion)). The Supreme Court has only recognized taxpayer standing in cases alleging violations of the Establishment Clause and has repeatedly declined to confer standing to taxpayers in cases alleging other constitutional violations. See Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 139 (2011); Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006); Schlesinger v. Reservist Comm. To Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974). Because Plaintiff's complaint alleges he is essentially a concerned citizen and because he does not allege Defendants violated the Establishment Clause, he lacks standing to bring suit as a taxpayer.
In addition, because Plaintiff's complaint is targeted to compel the policymaking branches of government to act, it is the exact type of case in which courts should not recognize generalized standing. As the Fourth Circuit explained in Ansley:
The concept of standing finds its roots in the “idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). By confirming that the legal questions presented to the court are resolved “in a concrete factual context” rather than “in the rarefied atmosphere of a debating society,” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the doctrine ensures that “we act as judges, and do not engage in policymaking properly left to elected representatives,” Hollingsworth, 133 S.Ct. at 2659. After all, thefederal courts “are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution.” Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (plurality opinion). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws)” is the function of the state and federal political branches. Lujan, 504 U.S. at 576, 112 S.Ct. 2130; see also United States v.Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (Powell, J., concurring) (“The public confidence essential to the [judiciary] and the vitality critical to the [representative branches] may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches.”).
861 F.3d at 517 (emphasis in original).
To the extent Plaintiff alleges other citizens were injured as a result of Defendants' actions or inaction, he lacks standing to bring suit on behalf of others as a pro se litigant. See Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005) (finding that a pro se person's right to litigate for oneself does not create a similar right to litigate on behalf of others).
Therefore, because Plaintiff lacks standing to bring suit against Defendants for the alleged constitutional violations, the undersigned recommends the case be summarily dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis. Independently, the court notes if Plaintiff' were to pay the filing fee, his case would be subject to summary dismissal on its merits.
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).