Opinion
C. A. 6:21-cv-04063-JD-KFM
02-18-2022
Robert William Wazney, Plaintiff, v. James C. Campbell, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
The plaintiff, a state prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on December 16, 2021 (doc. 1). By order dated January 4, 2022, the plaintiff was given an opportunity to provide the necessary information to bring the case into proper form for evaluation and possible service of process, including a complaint form, paperwork required to effect service of process, and documents regarding payment of the filing fee (doc. 4). The plaintiff was warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The order also instructed the plaintiff to notify the clerk in writing of any change of address and warned that failure to keep his address updated with the court may lead to dismissal of the case (id. at 2-3). The plaintiff's only response to the proper form order was to mail back all of the blank documents to the court along with a copy of a letter sent to several individuals that did not relate to the proper form documents (docs. 6; 7). The undersigned then issued a second order on January 27, 2022, providing the plaintiff with an additional opportunity to bring his case into proper form (doc. 9). The plaintiff was informed for a second time that his failure to bring the case into proper form could subject his case to dismissal for failure to prosecute and failure to comply with an order of the court (id. at 1). The order also reminded the plaintiff to notify the clerk in writing of any change of address and warned that failure to keep his address updated with the court may lead to dismissal of the case (id. at 2-3). The plaintiff submitted two letters in response to the second order, along with the blank proper form documents for a second time, asserting both that he cannot read the documents and that he has “demonstrated” that the defendant has violated his rights (docs. 11; 12). As such, despite the opportunities outlined above, the plaintiff has not brought his case into proper form for judicial screening.
ALLEGATIONS
The plaintiff submitted an affidavit as his complaint in this action (doc. 1). He contends that the defendant refuses to file his post-conviction relief (“PCR”) action in Lee County because, as quoted by the plaintiff “‘per our Administrative Judge, these documents will need to be filed in Sumter County since Mr. Campbell is the Clerk of Court for that County”' (id. at 1). The plaintiff further contends that he is being prevented from filing his PCR by the defendant (id.). He alleges denial of access to the courts and suspension of the writ of habeas corpus (id. at 1-7). For relief, the plaintiff seeks to have the South Carolina Supreme Court assume original jurisdiction over his PCR (id. at 9). Notably, the plaintiff signed the document indicating that “I have read the forgoing complaint and know its contents” (id.).
APPLICABLE LAW & ANALYSIS
Presumably, the plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute - although he has not submitted paperwork requesting to proceed in forma pauperis. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “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) (emphasis added). 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. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite multiple opportunities, the plaintiff has failed to bring his case into proper form. In doing so, he has failed to comply with the court's orders of January 4, 2022, and January 27, 2022, which instructed the plaintiff to provide specific documentation to the court so that the case could be screened as required by 28 U.S.C. §§ 1915; 1915A, and so that the United States Marshal Service could attempt service of process if service was authorized (docs. 4; 9). Each order warned the plaintiff of the consequences of failing to comply with the orders' instructions, including the dismissal of his case pursuant to Fed.R.Civ.P. 41(b) (docs. 4 at 1; 9 at 1). Despite these warnings, the plaintiff has not provided the court with the required documentation. Instead, as noted above, the plaintiff has continued to file letters with this court returning the proper form documents and asserting that he cannot read them (docs. 6; 7; 11; 12). However, as previously outlined by this court, the plaintiff's extensive pro se litigation history, including 18 appellate actions in the South Carolina Appellate Courts, more than 11 cases in the United States District Court for the District of South Carolina, as well as more than 14 appellate actions in the Fourth Circuit Court of Appeals, belie the plaintiff's assertions. Moreover, in another case filed recently in this court, the plaintiff submitted the appropriate documents to bring his case into proper form, including completing answers to the court's special interrogatories. See Wazney v. Nelson, et al., C/A No. 6:20-cv-03366-JD, at docs. 8; 12 (D.S.C.). Accordingly, as the plaintiff has failed to comply with the court's orders and has been previously warned that such failures could result in dismissal, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
Additionally, the undersigned notes that the plaintiff's complaint would be subject to summary dismissal even if he had brought it into proper form, because his allegations are meritless and frivolous, and they fail to show any arguable basis in fact or law. See Feurtado v. McNair, No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). First, the plaintiff's dissatisfaction with the defendant appears to arise from his refusal to comply with South Carolina state court procedures for filing a PCR action - a claim which has already been foreclosed by this court in a previous matter filed by the plaintiff. See Wazney v. Warden of Lee Corr. Inst., C/A No. 6:18-cv-02825-HMH-KFM, at doc. 27 (D.S.C. Dec. 13, 2018) (noting that the plaintiff failed to follow the appropriate procedure to file his PCR action and recognizing that the Fourth Circuit has held that South Carolina's post-conviction remedies are effective and must be exhausted before a petitioner may seek federal habeas relief). Moreover, court clerks, such as the named defendant, have derivative absolute judicial immunity when they act in obedience to a judicial order or under the court's direction. See McCray v. Maryland, 456 F.2d 1, 5 (4th Cir. 1972). Here, as quoted in the plaintiff's own pleadings, the defendant returned the PCR application per the “Administrative Judge” (doc. 1 at 2). As such, summary dismissal as frivolous is also appropriate.
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). As noted above, the plaintiff has failed to bring this case into proper form and the complaint is frivolous. Thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend his complaint. See Workman v. Kernell, C/A No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 n.7 (D.S.C. Oct. 2, 2018); McSwain v. Jobs, C/A No. 1:13-cv-00890, 2014 WL 12672619, at *1 (M.D. N.C. Jan. 6, 2014) (noting that “given the preposterous and frivolous nature of [the plaintiff's] complaint, it would be a waste of limited judicial resources to give him an opportunity to amend.”). As such, in light of the frivolous nature of the instant matter, along with the plaintiff's failure to bring his case into proper form, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g).
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).