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Smile v. Crestmont at Ballantyne LLC

United States District Court, W.D. North Carolina, Charlotte Division

February 4, 2019

AL SMILE, Plaintiff,
v.
CRESTMONT AT BALLANTYNE LLC, Defendant.

          ORDER

          Max O. Cogburn Jr. United States District Judge.

         THIS MATTER is before the Court on pro se plaintiff's Application to Proceed Without Prepayment of Fees and Affidavit (#2) and Motion for Temporary Restraining Order and Emergency Hearing (#3).

         FINDINGS and CONCLUSIONS

         I. Application to Proceed In Forma Pauperis

         The Court has carefully considered plaintiff's affidavit in conjunction with the Health and Human Services Poverty Guidelines, see https://aspe.hhs.gov/poverty-guidelines, and concludes that it is unable to determine whether plaintiff is able to pay the filing fee and costs associated with service of process.

         Plaintiff provided no information about his financial state on his Application to Proceed Without Prepayment of Fees and Affidavit. Other than the top portion of the first page, which includes only the parties' names and plaintiff's signature, the Application is completely blank. Plaintiff did not answer the questions regarding how much, if any, annual income he receives; whether he owns any assets; or whether he relies on any persons for support. Nor did plaintiff answer any of the questions regarding his estimated living expenses. He simply drew a vertical line down the page in response to questions 1 through 7, and he make no markings at all in response to questions 8 through 12.

         The Court acknowledges that pro se motions are construed liberally and is generally flexible with pro se plaintiffs attempting to navigate the judicial system. But this particular filing includes “Instructions” which tell the applicant not to leave any blanks and to write responses for each question, even if the answer to a question is “0, ” “none, ” or “not applicable (N/A).” Plaintiff presumably read these instructions, as he signed and dated the lines located directly below the Instructions section. See Hood v. Uber Techs., Inc., No. 1:16-CV-998, 2019 WL 93546, at *3 (M.D. N.C. Jan. 3, 2019) (“[C]ourts generally presume that readers of important documents have a basic level of understanding and willingness to read with care.”); see, e.g., Chapman v. Allied Van Lines, Inc., No. 5:15-CV-615, 2018 WL 701627, at *10 (E.D. N.C. Feb. 2, 2018) (noting “courts must presume that person who signs a contract has read it in its entirety”).

         The Court has, however, liberally considered the strike through of paragraphs to mean that plaintiff has no income, no assets, and no third-party sources of income, and will grant plaintiff's Application to Proceed Without Prepayment of Fees and Affidavit (#2), subject to later revisiting the issue if it is shown that plaintiff does have assets or sources of income. Process will not, however, issue as it appears that the action is frivolous.

         II. Section 1915 Review

         Pursuant to 28 U.S.C. § 1915(e)(2), a district court must dismiss a case at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from suit. Id. A pro se plaintiff's allegations in a complaint are to be liberally construed, and a court should not dismiss an action for failure to state a claim “unless after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Pro se filings “however unskillfully pleaded, must be liberally construed.” Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994).

         A. Plaintiff's Contentions

         The Court has closely considered the substantive allegations of the Complaint and determines plaintiff has made the following allegations. While plaintiff states this Court has jurisdiction over his Complaint based on “Rule 65. Injunctions and Restraining Orders!”, close review of the Complaint does not reveal that this court has any jurisdiction over any Complaint that plaintiff has expressed against “Crestmont @ Ballentyne LLC, ” which appears to be defendant's apartment complex.

         From what can be discerned from plaintiff's handwritten Complaint, which is largely illegible, the Court believes that plaintiff's Count 1 reads as follows:

A lawful invalid court order has been issued in violation of state and federal law! Basicly [sic], I file [sic] a suit against corp [sic] in district court, the attorney for said corp [sic]uses a defense that he just happened to check with secretary of state and discovered that said entity is nonexistent, therefore the court has no jurisdiction over a nonexistent entity. Judge dismisses [sic] case without allowing me to speak. Cont'd on back . . . If you can believe this; the same attorney/corporation, in retaliation files a phony manufactured suit against me using this same corporation that is fictitious and nonexistent where a district court judge just ruled. A blantant [sic] finger in the eye of Lady Justice! In that case I prevailed, proved my case, the judge ruled in my favor. Since that [sic] a lot has went on and there's been an onslaught of retaliatin [sic] from them toward me which is exactly what an unsuspecting, unknowing deputy sheriff is preparing to serve a writ of ...

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