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Montgomery v. United States Government

United States District Court, D. South Carolina, Charleston Division

February 17, 2016

Michael Lee Montgomery, II, Plaintiff,
v.
United States Government, Defendant.

ORDER ON IFP, and REPORT AND RECOMMENDATION

MARY GORDON BAKER, Magistrate Judge.

This case is before the Court for initial review. The pro se Plaintiff has filed a "Motion for Leave to Proceed in forma pauperis " ("IFP"). (DE# 3). Plaintiff sues the United States Government as defendant. Pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Pursuant to Local Civil Rule 73.02(B)(2) (D.S.C.), the Magistrate Judge is authorized to review the complaint and to submit findings and recommendations to the District Judge. Upon review, the Magistrate Judge will grant the Plaintiff's motion to proceed IFP, and recommend that the case be summarily dismissed for the following reasons:

I. Standard of Review

A. Initial Review for non-prisoner IFP complaints

Title 28 U.S.C.A. § 1915(e) governs IFP filings and provides that a district court must dismiss an action that the court finds to be frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.A. § 1915(e)(2)(B)(i-iii). 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). As for a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326 (1989). The "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). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.

B. Liberal Construction for Pro se filings

This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980) (per curiam). The liberal construction afforded pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim, it should do so, but a district court may not rewrite a complaint to "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986). 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 (4th Cir. 1990).

II. Discussion

A. Plaintiff's Application to Proceed IFP

A plaintiff may pursue a civil action in federal court without prepayment of the filing fee if he submits an affidavit containing a statement of his assets and demonstrates that he cannot afford to pay the required filing fee. 28 U.S.C. § 1915(a)(1). The purpose of the IFP statute is to assure that indigent persons have equal access to the judicial system by allowing them to proceed without having to pay the filing fee. Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151 (1982). A plaintiff does not have to prove that he is "absolutely destitute to enjoy the benefit of the statute." Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). An affidavit to proceed IFP is sufficient if it states facts indicating that the plaintiff cannot afford to pay the filing fee. Id. at 339.

In his IFP motion, Plaintiff indicates he has no income, no wages, no assets, and no money in a savings\checking account. (DE# 3, ¶¶ 2-5). On the printed form, he checks boxes indicating that in the past 12 months, he has had no income from any source. Based on the record presently before the Court, it appears that Plaintiff cannot pay the filing fee.

B. Initial Review: The Complaint Fails to State a Plausible Claim and is Frivolous

Plaintiff has filed a Complaint that fails to state a claim, and is factually and legally frivolous.[1] In his own words, Plaintiff alleges the following:

I have been living in a tent in the woods for a few months now. Most of the other people in the woods are employed by law enforcement. I have noticed...[illegible]...that someone has picked the lock to my tent and searched through my personal belongings. A few days ago someone slit two holes in the bottom of my tent. I believe that one of the undercover informants was given orders to search through my property and also cut a hole in my tent. I also believe that it is possible that more than one person has done this, possibly working through different law enforcement divisions. I believe that there is a good chance that President Barack Obama and Governor Nikki Haley are aware of this situation. I am requesting to summons them to the stand for interrogation along with the people employed by the FBI, CIA, SLED, DEA, U.S. Military, and the City of ...

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