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Gilstrap v. Petterson

United States District Court, D. South Carolina, Greenville Division

September 19, 2019

Olin Eugene Gilstrap, Plaintiff,
v.
Pete Petterson, Lisa Diam Reid, Dawn Michelle Harper, Thomas R Williamson, Joey Duncan, Kim Duncan, Jerome Latham, Defendants.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. McDONALD, UNITED STATES MAGISTRATE JUDGE

         This is a § 1983 action filed by a non-prisoner. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.

         BACKGROUND

         The plaintiff's complaint was entered on the docket on June 6, 2019 (doc. 1). By order dated June 11, 2019, the plaintiff was given an opportunity to provide the necessary information to bring the case into proper form for evaluation and possible service of process, including paperwork regarding payment of the filing fee (doc. 6). The 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 (id. at 1). The plaintiff did not respond to the order. By order dated July 12, 2019, the plaintiff was given an additional opportunity to bring the case into proper form for judicial screening (doc. 8). He was again warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). Plaintiff again failed to respond to the order, so an order of dismissal was entered by the Honorable Donald C. Coggins, Jr., United States District Judge (doc. 12). On August 12, 2019, the plaintiff submitted some of the proper form documents, so an order reopening the case was entered (doc. 18). Because the plaintiff had not provided all of the necessary documents to bring his case into proper form, a third proper form order was issued on August 15, 2019 (doc. 22). This order again warned the plaintiff that he was being provided with one final opportunity to bring his case into proper form and that failure to do so may subject the case to dismissal (id. at 2). Three weeks after the third proper form deadline passed, the plaintiff again submitted some, but not all, of the requested documents (doc. 25). As such, despite the opportunities outlined above, the plaintiff has not brought his case into proper form for judicial screening.

         ALLEGATIONS

         The plaintiff alleges that the defendants violated his constitutional rights by implanting listening devices in his body, which they use in order to make people commit crimes and cause wrongful deaths (doc. 1 at 2). He contends the defendants play games with the devices in his body, and indicates that “Eagle Eye Monitoring Company” is a “big part of [his] lawsuit” (id. at 5). He claims to have suffered numerous injuries to his body and scarring as a result (id. at 5, 6). For relief, the plaintiff seeks money damages, including the payment of his medical bills (id.).

         STANDARD OF REVIEW

         The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         DISCUSSION

         As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. For the reasons that follow, the undersigned recommends dismissal of the instant action.

         It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “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) (emphasis added). 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. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of personal responsibility on the part of the ...

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