United States District Court, E.D. North Carolina
MEMORANDUM AND RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge.
matter is before the court for a memorandum and
recommendation on Plaintiffs application to proceed in
forma pauperis under 28 U.S.C. § 1915 and for
frivolity review of the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B). [DE-1]. Plaintiff has demonstrated
appropriate evidence of inability to pay the required court
costs, but the complaint fails to state a claim over which
the court has subject matter jurisdiction. Accordingly, it is
recommended that the application to proceed in forma
pauperis be denied and the complaint be dismissed.
STANDARD OF REVIEW
to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss
the complaint if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks money
damages from a defendant immune from such recovery. 28 U.S.C.
§ 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40
F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted
predecessor statute 28 U.S.C. § 1915(d) "to prevent
abuse of the judicial system by parties who bear none of the
ordinary financial disincentives to filing meritless
claims"). A case is frivolous if it lacks an arguable
basis in either law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989); McLean v. United
States, 566 F.3d 391, 399 (4th Cir. 2009)
("Examples of frivolous claims include those whose
factual allegations are 'so nutty, ' 'delusional,
' or 'wholly fanciful' as to be simply
'unbelievable.'"). A claim lacks an arguable
basis in law when it is "based on an indisputably
meritless legal theory." Neitzke, 490 U.S. at
327. A claim lacks an arguable basis in fact when it
describes "fantastic or delusional scenarios."
Id. at 327-28.
determining whether a complaint is frivolous, "a court
is not bound, as it usually is when making a determination
based solely on the pleadings, to accept without question the
truth of the Plaintiffs allegations." Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may
find a complaint factually frivolous "when the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them." Id.
"The word 'frivolous' is inherently elastic and
not susceptible to categorical definition.... The term's
capaciousness directs lower courts to conduct a flexible
analysis, in light of the totality of the circumstances, of
all factors bearing upon the frivolity of a claim."
Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57
(4th Cir. 2004) (some internal quotation marks omitted). In
making its frivolity determination, the court may "apply
common sense." Nasim v. Warden., Md. House of
Correction, 64 F.3d 951, 954 (4th Cir. 1995).
order to state a claim on which relief may be granted,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "Factual
allegations must be enough to raise a right to relief above
the speculative level . . . .'" Twombly,
550 U.S. at 555. While a complaint need not contain detailed
factual allegations, the plaintiff must allege more than
labels and conclusions. Id. In the present case,
Plaintiff is proceeding pro se and pleadings drafted
by a. pro se litigant are held to a less stringent
standard than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). The court is charged
with liberally construing a pleading filed by a pro
se litigant to allow for the development of a
potentially meritorious claim. See id; Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However,
the principles requiring generous construction of pro
se complaints are not without limits; the district
courts are not required "to conjure up questions never
squarely presented to them." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
appears to allege that Defendants-who include, among others,
the Clerk of Court of the United States Supreme Court, the
House of Representatives, the Miami Police Department, the
state of Florida, the city of Miami, and several individuals,
including United States Congresswoman Ileana Ros-Lehtinen and
Judge Thomas Williams, some of whom were named in prior suits
filed by Plaintiff-somehow caused a prior federal appeal to
be untimely and thus dismissed. [DE-1]. Plaintiff lists
many Defendants, but his primary claim seems to only
implicate Jeff Atkin, Clerk of Court of the United States
Supreme Court. Plaintiff generally alleges claims for civil
rights violations, claiming he was discriminated against when
his appeal of a Florida Supreme Court case was wrongfully
dismissed as out of time in the United States Supreme Court.
Id. at 1. In later filings, Plaintiff: (1) submitted
evidence of mailing an appeal to the United States Supreme
Court, which stated the expected delivery date was November
18, 2017 [DE-5]; (2) submitted evidence seemingly from the
internet with respect to information regarding some
Defendants [DE-6]; (3) filed a motion to stop the Attorneys
General of Florida and North Carolina from forcing Plaintiff
to be found guilty of a crime [DE-7, -8]; (4) filed a
petition for the Attorney General of North Carolina to issue
an arrest warrant for an attorney in Florida [DE-9]; and (5)
filed an amended complaint, seeking to add as defendants the
Miccosukee Tribe of Florida and Lawyer Bernardo Roman, and
not stating how the additional Defendants relate to his civil
rights claim. [DE-11].
carefully reviewed Plaintiffs allegations, the court
determines that Plaintiffs complaint is illogical,
convoluted, and lacks an arguable basis in fact.
Neitzke, 490 U.S. at 325. The court cannot surmise
whether Plaintiff is bringing a civil rights violation case
against the Clerk of Court of the United States Supreme
Court, or seeks to challenge the dismissal of his appeal by
the United States Supreme Court. To the extent Plaintiff
asserts a federal claim for discrimination, he has alleged no
facts whatsoever to support his claim, and "[c]onclusory
allegations of discrimination are insufficient to state a
claim." Persaudv. Morgan State Univ., 34 F.3d
1066, 1994 WL 446797, at *2 (4th Cir. 1994) (citing
Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990));
see Williams v. North Carolina, No. 5:12-CV-680-D,
2013 WL 6048740, at *4 (E.D. N.C. Nov. 14, 2013) (dismissing
claim related to allegedly discriminatory foreclosure where
plaintiffs made no plausible allegations to support an equal
protection claim). Accordingly, he has failed to state a
claim over which the court can grant relief.
extent Plaintiff seeks to have the dismissal of his United
States Supreme Court case reversed, the court lacks
jurisdiction to grant such a relief. Effectively, Plaintiff
requests that this court issue a writ of mandamus to compel
the United States Supreme Court to take action on a petition
that he may have filed with that Court, or reverse a decision
that was made by that Court. That claim for relief is legally
deficient. First, mandamus relief is used by an
"[a]ppellate court... 'to confine an
inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when
it [has the] duty to do so.'" United States v.
Bertoli, 994 F.2d 1014 (3d Cir. 1993) (emphasis added)
(quoting Roche v. Evaporated Milk Ass'n, 319
U.S. 21, 26 (1943)). The United States Supreme Court, as the
highest court in the land, is obviously not an inferior court
subject to a district court's directive. Second, there is
no legal precedent recognizing as legally valid a claim
asking an inferior court to compel a higher court to exercise
the higher court's authority. Accordingly, the court
lacks jurisdiction to grant the relief requested by
reasons stated herein, it is RECOMMENDED that the case be
dismissed for failure to state a claim over which the court
has subject matter jurisdiction.
DIRECTED that a copy of this Memorandum and Recommendation be
served on Plaintiff. You shall have until December 21, 2017,
to file written objections to the Memorandum and
Recommendation. The presiding district judge must conduct his
or her own review (that is, make a de novo determination) of
those portions of the Memorandum and Recommendation to which
objection is properly made and may accept, reject, or modify
the determinations in the Memorandum and Recommendation;
receive further evidence; or return the matter to the
magistrate judge with instructions. See, e.g., ...