United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court upon Plaintiff Giraud Hope's
Motion to Proceed In Forma Pauperis (Doc. No. 2) and on
initial review of Plaintiff's Complaint under 28 U.S.C.
February 9, 2011, Hope pled guilty in federal district court,
pursuant to a plea agreement, to one count of conspiracy to
commit health-care fraud, in violation of 18 U.S.C. §
1349. Plea, Doc. No. 8. Although the advisory sentencing
guidelines provided for a range of imprisonment between 37
and 46 months, the Court departed downward and sentenced Hope
to 15 months in prison followed by a term of supervised
release. Judgment, Doc. No. 15. Judgment was entered on
November 3, 2011. Hope did not enter a direct appeal.
successfully completing the term of imprisonment, Hope began
serving the supervised release portion of his sentence but
was brought before the Court on a violation of the terms of
supervised release. On October 14, 2014, the Court entered a
Judgment for Revocation of Supervised Release, imposing a
sentence of nine months in prison, followed by 24 months of
supervised release. SRV Judgment, Doc. No. 28. Hope did not
appeal the Judgment.
September 2, 2015, Hope filed a pro se Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255,
challenging his 2011 Judgment for conspiracy to commit
health-care fraud. Motion to Vacate, Hope v. United
States, 3:15-cv-408-MOC ( N.C. W.D.), Doc. No. 1. On
January 5, 2016, the Court entered an Order dismissing the
Motion to Vacate as untimely. Order Dismiss'g Mot. to
Vacate, id. at Doc. No. 12. On May 23, 2016, the
Fourth Circuit Court of Appeals entered an unpublished
opinion dismissing Hope's appeal of this Court's
Order. United States v. Hope, 639 F. App'x 961
(4th Cir.) (Mem), cert. denied, 137 S.Ct. 408 (2016)
January 12, 2017, Hope filed a second Motion to Vacate, Set
Aside, or Correct Sentence under § 2255. Mot. to Vacate,
Hope v. United States, 3:17-cv-00014-MOC ( N.C.
W.D.), Doc. No. 1. He again challenged only his 2011 Judgment
for conspiracy to commit health-care fraud. Id. On
January 18, 2017, the Court dismissed the Motion to Vacate
without prejudice as an unauthorized, successive § 2255
motion. Order Dismiss'g Mot. to Vacate, id. at
Doc. No. 2.
was released from the custody of the Federal Bureau of
Prisons on February 17, 2015. Order Modify'g Conditions
of Supervised Release, Doc. No. 40. His term of supervised
release expired on February 17, 2017. Id.
April 14, 2017, Hope filed the instant action purporting to
raise claims under 18 U.S.C. § 1983. (Compl. 1, Doc. No.
1.) In his Complaint, Plaintiff challenges the legality of
his federal prosecution contending that through
Defendants' ineffectiveness his federal constitutional
rights were violated, and he raises a claim for monetary
damages and other forms of relief.
STANDARD OF REVIEW
law requires that a party instituting a civil action in
federal district court pay a filing fee or be granted leave
to proceed without prepayment of fees and costs. See
28 U.S.C. §§ 1914(a), 1915(a)(1). To establish an
inability to pay, the plaintiff must submit an affidavit that
includes a statement that the person is unable to pay such
did not use a standard “Application to Proceed in
District Court without Prepaying Fees or Costs” form,
and his Motion to Proceed In Forma Pauperis is almost
impossible to follow. (Doc. No. 2.) Nevertheless, the Court
will grant the Motion because the debt Hope currently owes
for taxes, student loans, and Court-ordered restitution
totals over $2 million dollars. (Doc. No. 2.)
Hope is proceeding in forma pauperis, the Court must review
the Complaint to determine whether it is subject to dismissal
on the grounds that it is “frivolous or malicious [or]
fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2). In its frivolity review, this
Court must determine whether the Complaint raises an
indisputably meritless legal theory or is founded upon
clearly baseless factual contentions, such as fantastic or
delusional scenarios. Neitzke v. Williams, 490 U.S.
319, 327-28 (1989).