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Fortner v. Spartanburg City Public Safety

United States District Court, D. South Carolina

February 9, 2018

Christopher Fortner, Plaintiff,
v.
Spartanburg City Public Safety, Spartanburg City Officer Eggleston, Spartanburg City, Defendants.

          REPORT AND RECOMMENDATION

          JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

         Christopher 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.

         BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff's 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. 15.]

         Plaintiff 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 USM-285 forms).

         The 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.]

         The 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 has lapsed.

         With 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.[1] See Public Index of the Laurens County Clerk of Court, http://publicindex.sccourts.org/laurens/ 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.

         Plaintiff 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.

         With 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.

         RECOMMENDATION

         Accordingly, 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.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report ...


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