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Johnson v. City of Goose Creek

United States District Court, D. South Carolina

April 16, 2018

Earl Johnson, a/k/a Earl Johnson, Jr., Plaintiff,
v.
City of Goose Creek, Department of Social Services, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MERCHANT UNITED STATES MAGISTRATE JUDGE.

         This is 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 Cir. 1983).

         Section 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 case here.

         Discussion

         In his 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.[1] 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].

         Further, 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 rests.'"].

         Because 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.

         Finally, 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].

         Recommendation

         Based 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.

         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 & Ace. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's 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 Post Office Box 835 Charleston, ...

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