United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MERCHANT UNITED STATES MAGISTRATE JUDGE.
a civil action filed by the Plaintiff, Earl Johnson, also
known as Earl Johnson, Jr., pro se, and is before the Court
for pre-service review. See 28 U.S.C. § 1915(e)(2)(B);
In re Prison Litigation Reform Act, 105 F.3d 1131,
1134 (6th Cir. 1997)[pleadings by non-prisoners should also
be screened]. Under established local procedure in this
judicial district, a careful review has been made of the pro
se complaint herein pursuant to the procedural provisions of
§ 1915, and in light of the following precedents:
Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke
v. Williams, 490 U.S. 319 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995) (en
banc): and Todd v. Baskerville, 712 F.2d 70 (4th
1915 permits an indigent litigant to commence an action in
federal court without paying the administrative costs of
proceeding with the lawsuit. However, to protect against
possible abuses of this privilege, the statute allows a
district court to dismiss the case upon a finding that the
action "is frivolous or 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. § 1915(e)(2)(B). A
finding of frivolousness can be made where the complaint
"lacks an arguable basis either in law or in fact."
Denton v. Hernandez, 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte, Neitzke v.
Williams, 490 U.S. 319. Further, while this Court is
also required to liberally construe pro se documents, holding
them to a less stringent standard than those drafted by
attorneys, Erickson v. Pardus, 551 U.S. 89, 94
(2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)), 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 court. Weller v. Dep't of
Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the
rambling pleading titled "file on Demand Notice And
Claim", Plaintiff attempts to put the City of Goose
Creek and the Department of Social Services on notice that he
may or not obey the law and that he may file a lawsuit if his
rights are violated. However, this action is subject to
summary dismissal because Plaintiff fails to make a request
for relief. Were this Court to find that Plaintiffs rights
have been violated, but order no remedy, it would, in effect,
be rendering an advisory opinion which is barred by Article
III of the Constitution. Preiser v. Newkirk, 422
U.S. 395, 401 (1975): see also Norvell v. Sangre de
Cristo Dev. Co., 519 F.2d 370, 375 (10th Cir. 1975)
[federal courts do not render advisory opinions].
after review of Plaintiff s filings, it is apparent that the
complaint should be summarily dismissed because Plaintiffs
allegations are generally so incomprehensible and filled with
what could only be considered by a reasonable person as
unconnected, conclusory, and unsupported comments or
"gibberish, " that it is unclear what is to be made
of them. See Hagans v. Lavine, 415 U.S. 528, 536-537
(1974) [Noting that federal courts lack power to entertain
claims that are "so attenuated and unsubstantial as to
be absolutely devoid of merit"]; see also Livingston
v. Adirondack Beverage Co., 141 F.3d434(2ndCir. 1998):
Adams v. Rice, 40 F.3d 72 (4th Cir. 1994) [Affirming
dismissal of plaintiffs suit as frivolous where allegations
were conclusory and nonsensical on their face]. Plaintiff
fails to specify what actions any of the named Defendants
took or failed to take that allegedly violated his
constitutional or other federal rights. Thus, Plaintiffs
Complaint is in violation of the directive in Federal Rule of
Civil Procedure 8(a) that pleadings shall contain "a
short and plain statement" of the basis for the
court's jurisdiction and of the basis for a plaintiffs
claims against each defendant. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) [requiring, in order
to avoid dismissal, '"a short and plain statement of
the claim showing that the pleader is entitled to relief,
' in order to 'give the defendant fair notice of what
the... claim is and the grounds upon which it
these pleading deficiencies could possibly corrected by
amendment, see, e.g., Brockington v. South
Carolina Dept. of Social Service, No. 17-1028, 2017 WL
1531633 (4th Cir. April 28, 2017) [Noting that pro se
Plaintiff should be provided an opportunity to amend his
complaint to cure defects prior to a dismissal]; Evans v.
Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May
25, 2017) [same]; Breyan v. All Medical Staff, No.
17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017) [same],
Plaintiff was given an opportunity to file an amended
complaint. In an order dated March 12, 2018, Plaintiff was
specifically warned that the Complaint failed to give
Defendants adequate notice of any claim against them and that
he failed to make a request for relief . He was directed to
file any amended complaint within twenty-one (21) days.
Order, ECF No. 6. However, Plaintiff has not filed an amended
complaint or otherwise responded.
it should be noted that Plaintiff has failed to bring his
case into proper form. In the order dated March 12, 2018,
Plaintiff was given an opportunity to provide the necessary
information and paperwork, to include forms necessary to
effect service, to bring the case into proper form for
evaluation and possible service of process. ECF No. 6.
Plaintiff failed to provide the necessary documents or to
otherwise respond. Plaintiff was specifically warned that
failure to provide the necessary information within the
timetable set forth in the Order would subject the case to
dismissal. See Fed.R.Civ.P. 41. Thus, in the alternative, it
is recommended that this action be dismissed, without
prejudice, in accordance with Rule 41, Fed.R.Civ.P. See
Link v. Wabash R.R. Co., 370 U.S. 626 (1962);
Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir.
1989), cert, denied sub nom, Ballard v.
Volunteers of America, 493 U.S. 1084(1990) [holding that
district court's dismissal following an explicit and
reasonable warning was not an abuse of discretion].
on the foregoing, it is recommended that the Court dismiss
Plaintiffs Complaint without prejudice and without issuance
and service of process. Plaintiffs attention is directed to
the important notice on the next page.
of Right to File Objections to Report and
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 & Ace. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
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 Post
Office Box 835 Charleston, ...