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Finan v. Child Protective Services

United States District Court, M.D. North Carolina

May 14, 2019



          L. Patrick Auld United States Magistrate Judge.

         This matter comes before the undersigned United States Magistrate Judge on the Application to Proceed in District Court Without Prepaying Fees or Costs (the “Application”) (Docket Entry 1) filed in conjunction with Plaintiff's pro se Complaint (Docket Entry 2). The undersigned will grant the Application for the limited purpose of recommending dismissal of this action without prejudice to Plaintiff filing a new Complaint in the proper district which corrects the defects of the current Complaint.


         “The federal in forma pauperis statute, first enacted in 1892 [and now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access to the courts solely because his poverty makes it impossible for him to pay or secure the costs.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th Cir. 1995) (en banc) (internal quotation marks omitted). “Dispensing with filing fees, however, [i]s not without its problems. . . . In particular, litigants suing in forma pauperis d[o] not need to balance the prospects of successfully obtaining relief against the administrative costs of bringing suit.” Nagy v. FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004). To address this concern, the in forma pauperis statute provides that “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or . . . (ii) fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

         As to the first of these grounds, “a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “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, 376 F.3d at 256-57 (some internal quotation marks omitted). In determining frivolousness, the Court may “apply common sense.” Nasim, 64 F.3d at 954.

         As to the second ground, a plaintiff “fails to state a claim on which relief may be granted, ” 28 U.S.C. § 1915(e)(2)(B)(ii), when the complaint does not “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) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.[1]


         Asserting claims under the 4th, 5th, 6th, and 14th Amendments (see Docket Entry 2 at 7), Plaintiff initiated this action against Defendant “Child Protect [sic] Services” (“Defendant CPS”) (see Docket Entry 2 at 1, 7). In that regard, Plaintiff filed two Complaint forms with this Court, the first of which, a “Pro se [Non-prisoner] Complaint Form, ” asks “[f]or KQ Return KQ” under “Jurisdiction” (id. at 1), alleges under its “Statement of Claim” that “they have [sic] been no due process in any of this case all they have is hearsay and no proof what happen to par[ent]s being able to r[a]ise there [sic] child[re]n with ou[t] the state lies on us and taken [sic] our children for no reason[, ] [Plaintiff] sueing [sic] for dam[a]ges and pain” (id. at 2), and requests as relief that the “Court return KQ to his mother [and] [t]hat [Defendant CPS] pay 25, 000 for [Plaintiff's] pain and dam[a]ges” (id. at 4). The second form, a “Complaint for a Civil Case” form, alleges under its “Statement of Claim” that “they never did any investiages [sic] all they have are false statement[s] and that [sic] not grounds to take [Plaintiff's] son” (id. at 8), and repeats the request from the first form demanding that Defendant CPS “[r]eturn KQ, ” along with “25, 000 for dam[a]ges and pain” (id. at 9).


         Presented in a conclusory and sometimes incoherent fashion, the Complaint's allegations apparently relate to Defendant CPS's removal of Plaintiff's minor son from her custody. (See generally Id. at 1-9.) Although the Court “cannot shoulder the full burden of fashioning a viable complaint for a pro se plaintiff, ” Simon v. Shawnee Corr. Ctr., No. 13-521-GPM, 2013 WL 3463595, at *1 (S.D. Ill. July 9, 2013) (unpublished), liberal construction permits the Court to determine, based upon the references in the Complaint to deprivation of Plaintiff's constitutional rights under the 4th, 5th, 6th, and 14th amendments, that this action conceivably could fall under 42 U.S.C. § 1983. See Martin v. Gentile, 849 F.2d 863, 868 (4th Cir. 1988) (explaining that courts must “construe [pro se complaints] liberally to assert any and all legal claims that its factual allegations can fairly be thought to support” (citing Haines v. Kerner, 404 U.S. 519 (1972)). However, even liberally construed, the Complaint fails to plead a viable Section 1983 claim.

         As an initial matter, neither Complaint form filed by Plaintiff contains dates as to any of the alleged activities. (See Docket Entry 2.) “An allegation of time . . . is material when testing the sufficiency of a pleading.” Fed.R.Civ.P. 9(f). Because of the materiality of such allegations to the evaluation of the sufficiency of the Complaint, Plaintiff has not set forth an adequate “short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). This patent deficiency renders the Complaint frivolous.

         Section 1983 Claim

         In addition to the above-noted fatal deficiency, this action also fails to state a claim. To state a claim for relief under Section 1983, Plaintiff must allege factual matter showing “that [she was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).[2] Moreover, Plaintiff must raise her Section 1983 claims “against a ‘person'” capable of committing a violation of his constitutional rights. Conley v. Ryan, 92 F.Supp.3d 502, 519 (S.D. W.Va. 2015) (quoting 42 U.S.C. § 1983). As “Congress did not exercise its power to abrogate a state's Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983, ” Coffin v. South Carolina Dep't of Soc. Servs., 562 F.Supp. 579, 585 (D.S.C. 1983), “a State is not a person within the meaning of § 1983, ” Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). That rule extends to state agencies. See id.; Manning v. South Carolina Dep't of Highway & Pub. Transp., 914 F.2d 44, 48 (4th Cir. 1990).

         Moreover, even absent a finding that Defendant CPS qualifies as a state agency, the Complaint fails to state a viable Section 1983 claim. Liberally construed, any such claim appears to rest on a theory that “they t[ook] [Plaintiff's] son” (Docket Entry 2 at 8), “[did] not [have] grounds to take [him]” (id.), and “there ha[s] been no due process” (id. at 2). The Complaint does not identify “they” and, assuming “they” refers to Defendant CPS, the Complaint's vague assertions that “the state lies . . . and take[s] . . . children for no reason” (id. at 2), and that “they never did any investiages [sic] all they have are false statement[s]” (id. at 8), do not plausibly establish that Defendant CPS unlawfully deprived Plaintiff of her constitutional rights when they removed Plaintiff's ...

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