United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
Fortner (“Plaintiff”), proceeding pro se, brings
this civil rights action pursuant to 42 U.S.C. § 1983.
[Doc. 1.] Pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B) (2)(d) (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 below, it is recommended that
the district judge dismiss this action pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure.
AND PROCEDURAL HISTORY
claims arise from his arrest on August 5, 2017, by Officer
Eggleston. [Doc. 1-2 at 4.] Plaintiff asserts causes of
action for false arrest and excessive use of force.
[Id. at 3.] At the time Plaintiff commenced this
action, he was a state pretrial detainee at the Spartanburg
County Detention Center. [Id. at 2.] Plaintiff is no
longer in custody and appears to live in Tennessee. [Doc.
initiated this action by filing a Complaint on August 28,
2017. [Doc. 1.] Plaintiff also filed an application to
proceed without prepayment of filing fees, which the Court
construes as a motion for leave to proceed in forma pauperis
(“IFP Motion”). Both documents-the Complaint and
the IFP Motion-were handwritten and failed to substantially
conform to the Court's standard forms in accordance with
Local Civil Rule 83.VIII.01, D.S.C.. Additionally, Plaintiff
failed to file the proper service documents required to serve
the case on the Defendants (including a summons form and
undersigned conducted an initial screening of this matter
pursuant to 28 U.S.C. § 1915 (authorizing screening for
in forma pauperis cases) and 28 U.S.C. § 1915A
(authorizing screening for cases in which a prisoner seeks
redress from a governmental entity). The Court determined
that the case was not in proper form for evaluation and
service of process. By Order dated September 12, 2017,
Plaintiff was given an opportunity to provide the necessary
information and paperwork to bring the case into proper form
for evaluation and possible service of process. [Doc. 7.]
Among other things, the Court directed Plaintiff to file
proper service documents (a completed summons and USM-285
forms) and to file a complaint and IFP Motion on the
Court's standard forms, which were attached to the
Court's Order. On September 29, 2017, Plaintiff filed a
motion [Doc. 9] for extension of time to bring the case into
proper form, which the Court granted [Doc. 10]. Plaintiff
then filed the following documents on October 25, 2017: a
summons and USM-285 forms [Doc. 13], a Complaint on the
standard form [Doc. 1-2], and an IFP Motion on the standard
form [Doc. 12]. Thereafter, on November 1, 2017, Plaintiff
filed a notice of change of address, informing the Court that
he was now living in Tennessee. [Doc. 15.]
undersigned again conducted a review of this case and
concluded that the case was still not in proper form for
evaluation and service of process. Importantly, the summons
form filed by Plaintiff was blank. [Doc. 13 at 1.]
Additionally, while Plaintiff completed the USM-285 forms,
the Plaintiff's address listed on those forms is
inconsistent with the address he provided to the Court on
November 1, 2017. [See Doc. 15.] Finally,
Plaintiff's second IFP Motion on the standard court form
[Doc. 12], indicated that Plaintiff had the funds available
to pay the filing fee. Accordingly, by Order dated November
16, 2017, Plaintiff was given a final opportunity to bring
the case into proper form for evaluation and service of
process. [Doc. 16.] Among other things, Plaintiff was
directed to answer the Court's special interrogatories
[Doc. 16-1] to explain why he could not pay the filing fee
based on the financial information contained in his
application. Plaintiff was also directed to provide completed
service documents. 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.
On November 16, 2017, Plaintiff filed a letter [Doc. 18] with
the Court, claiming that police officers threatened the
“DA” and Plaintiff's counsel in his criminal
proceedings and that Plaintiff suspected police officers were
committing mail fraud and interfering with legal process.
However, Plaintiff did not otherwise respond to the Order to
bring this case into proper form, and the time for response
regard to Plaintiff's IFP Motion, it is unclear whether
Plaintiff is presently employed or whether the financial
information regarding his income and expenses listed on his
application are current. As noted, Plaintiff commenced this
action while he was in custody at the Spartanburg County
Detention Center. It appears that Plaintiff was released from
custody sometime in November. According to the Public Index
of the Spartanburg County Clerk of Court, Plaintiff posted
bond on November 27, 2017. See Public Index of the Laurens County
Clerk of Court,
publicindex/PISearch.aspx, last visited on February 8, 2018.
However, Plaintiff filed his notice of change of address on
November 1, 2017, prior to the date Plaintiff posted bond
according the court records.
has failed to clarify his current employment status or
demonstrate that he is unable to pay the filing fee.
Importantly, on his IFP application, Plaintiff stated in
paragraph 2 that his monthly income from employment is
approximately $1500 (take-home pay). He also stated in
paragraph 3 that he earns approximately $500-$1, 000 per
month in sales from his online business. Thus, it appears
that his total monthly take-home pay is about $2, 000-$2, 500
per month. Further, Plaintiff listed his monthly expenses on
his financial application as totaling $925. As such,
Plaintiff's total monthly income ($2, 000-$2, 500)
exceeds his regular monthly expenses ($925). Additionally,
Plaintiff stated on his financial application that he has
approximately $1, 000 in cash, checking or savings. [Doc. 12
¶ 4.] The undersigned directed Plaintiff to explain why
he is unable to pay the filing fee, based on the information
above, but Plaintiff has failed to respond.
regard to the required service documents, Plaintiff has
failed to file a properly completed summons form or USM-285
forms listing the Defendants, with appropriate service
addresses, or Plaintiff's own current address. As such,
the Court is unable to authorize issuance of service of
process. The undersigned has entered two Orders directing
Plaintiff to file properly completed service documents,
warning Plaintiff that failure to comply with the Court's
Orders may subject the case to dismissal. Nevertheless,
Plaintiff has failed to comply with this Court's orders
and has failed to prosecute this case.
for the reasons above, it is recommended that this case be
dismissed without prejudice
pursuant to Rule 41 of the Federal Rules of Civil Procedure.
See Link v. Wabash R.R. Co., 370 U.S. 626 (1962).
Plaintiff's attention is directed to the
important notice on the next page.
IS SO RECOMMENDED.
of Right to File Objections to Report ...