United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES UNITED STATES MAGISTRATE JUDGE
Colbert (“Plaintiff”), proceeding pro se and in
forma pauperis, filed this complaint against South Carolina
Department of Family Services (“Defendant”).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned
is authorized to review such complaints for relief and submit
findings and recommendations to the district judge. For the
following reasons, the undersigned recommends the district
judge dismiss the complaint without issuance and service of
Factual and Procedural Background
filed a complaint on August 12, 2019, alleging Defendant has
treated her unfairly based on her disabilities and deprived
her of custody of her children. [ECF No. 1 at 4-5]. On August
14, 2019, the court notified Plaintiff of pleading
deficiencies and granted her an opportunity to cure the
deficiencies through an amended complaint. [ECF No. 6]. The
court also ordered Plaintiff to complete a summons form,
prepare Form USM-285, and provide answers to Local Civ. Rule
26.01 (D.S.C.) Interrogatories. [ECF No. 5]. Both orders
alerted Plaintiff her failure to comply by September 4, 2019,
could subject her case to summary dismissal. [ECF No. 5 at 1;
ECF No. 6 at 6]. Plaintiff has failed to respond to either
Standard of Review
filed her complaint pursuant to 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal
court without prepaying the administrative costs of
proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss a case upon a finding that the action fails to
state a claim on which relief may be granted or is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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). A claim based on a
meritless legal theory may be dismissed sua sponte under 28
U.S.C. § 1915(e)(2)(B). See Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
Failure to Prosecute
well established that a district court has authority to
dismiss a case for failure to prosecute. “The authority
of a court to dismiss sua sponte for lack of prosecution has
generally been considered an ‘inherent power,'
governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.” See Link v. Wabash R.R. Co., 370 U.S.
626, 630-31 (1962). In addition to its inherent authority,
this court may also sua sponte dismiss a case for lack of
prosecution under Fed.R.Civ.P. 41(b). Id. at 630.
Based on Plaintiff's failure to respond to the
court's August 14, 2019 orders, the undersigned concludes
Plaintiff does not intend to pursue the above-captioned
matter. Accordingly, the undersigned recommends this case be
dismissed without prejudice for failure to prosecute pursuant
to Fed.R.Civ.P. 41. Alternatively, Plaintiff's complaint
is subject to summary dismissal on the merits.
Failure to State a Claim
courts are courts of limited jurisdiction, “constrained
to exercise only the authority conferred by Article III of
the Constitution and affirmatively granted by federal
statute.” In re Bulldog Trucking, Inc., 147
F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court
is required, sua sponte, to determine if a valid
basis for its jurisdiction exists “and to dismiss the
action if no such ground appears.” Id. at 352;
see also Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Although the absence of subject matter jurisdiction may be
raised at any time during the case, determining jurisdiction
at the outset of the litigation is the most efficient
procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th
is no presumption that a federal court has jurisdiction over
a case, Pinkley, Inc. v. City of Frederick, MD., 191
F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege
facts essential to show jurisdiction in her pleadings.
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189-90 (1936); see also Dracos v. Hellenic Lines,
Ltd., 762 F.2d 348, 350 (4th Cir. 1985)
(“[P]laintiffs must affirmatively plead the
jurisdiction of the federal court.”). To this end,
Fed.R.Civ.P. 8(a)(1) requires the complaint provide “a
short and plain statement of the grounds for the court's
jurisdiction[.]” When a complaint fails to include
“an affirmative pleading of a jurisdictional basis[, ]
a federal court may find that it has jurisdiction if the
facts supporting jurisdiction have been clearly
pleaded.” Pinkley, 191 ...