Nails v. City of Dothan

Filing 5

RECOMMENDATION of the Magistrate Judge that this action be dismissed with prejudice, pursuant to 28 USC 1915(e)(2)(B). Objections to R&R due by 9/21/2006. Signed by Judge Delores R. Boyd on 9/6/06. (sl, )

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Nails v. City of Dothan Doc. 5 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION ANGELA DENISE NAILS, Plaintiff, v. CITY OF DOTHAN, Defendant. ) ) ) ) ) ) ) ) ) 1:06-CV-00760-WKW-DRB [wo] R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE Filed herewith is an ORDER granting Angela Denise Nails ("Nails) in forma pauperis s tat u s to file this purported action on August 24, 2006, without prepayment of fees or costs, b u t staying service of the Complaint. Because the purported Complaint is so patently f ri v o l o u s and reflects this plaintiff's inexcusable abuse of the judicial process, the Magistrate Ju dg e recommends that it be dismissed with prejudice, without any opportunity for am e n d m e n t and prior to service of process. I. VEXATIOUS LAWSUITS O n March 17, 2006, Nails, an unemployed disabled indigent who resides in Dothan 1 , file d seven separate lawsuits in this court pursuant to 28 U.S.C. § 1915: 1:06-cv-00246-MEF-VPM 1:06-cv-00247-WKW-DRB 1:06-cv-00249-MEF-VPM 1 Nails v. Preston et al Nails v. East Gate Inn filed 03/17/06 closed 04/07/06 filed 03/17/06 closed 05/01/06 Nails v. Dothan Rescue Mission filed 03/17/06 closed 04/07/06 Nails does not disclose in her in forma pauperis applications the nature of her disability, but her written submissions in each case raise reasonable doubts about her mental stability. Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 2 of 8 1:06-cv-00250-MEF-SRW 1:06-cv-00251-MHT-DRB 1:06-cv-00252-MHT-CSC 1:06-cv-00253-MEF-VPM Nails v. Beavers Nails v. Jones Nails v. Centurytel Phone Co. filed 03/17/06 closed 04/17/06 filed 03/17/06 closed 04/28/06 filed 03/17/06 closed 05/25/06 Nails v. Compass Bank Dothan filed 03/17/06 closed 05/09/06 In recommending the dismissal of case no. 1:06-cv-00247-WKW-DRB , Nails v. East G at e Inn, after providing Nails an opportunity to amend her complaint, this Magistrate Judge d o c u m e n t e d , as follows, these complaints , which "charg[ed] a variety of defendants with s p u rio u s claims most frequently seen in state court litigation": ·Case no. 1:06-cv-00246-MEF-VPM Nails v. Eugene Preston and Pauline Preston negligence action arising from auto accident, or some other event, occurring in January 2003; dismissed without prejudice on 4/7/06 for lack of subject matter jurisdiction ·Case no. 1:06-cv-00249-MEF-VPM Nails v. Dothan Rescue Mission damages claimed for defendant's alleged failure to provide assistance or service on unspecified date; dismissed without prejudice on 4/7/06 for lack of subject matter jurisdiction ·Case no. 1:06-cv-00250-MEF-SRW Nails v. Ruby Beavers purported discrimination claim under the Fair Housing Act arising from defendant's alleged failure to address complaints of harassment on unspecified dates by other tenants in an Aliceville, AL apartment complex; dismissed without prejudice on 4/17/06 for improper venue ·Case no. 1:06-cv-00251-MHT-DRB Nail v. Al Jones claim against an attorney for neglecting a legal matter entrusted to him, on some unspecified date and in a manner not described, in alleged violation of Rule 1.14 of the Ala. Professional Code of Conduct 2 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 3 of 8 ·Case no. 1:06-cv-00252-MHT-CSC Nails v. Centurytel Phone Company negligence complaint arising from defendant's alleged failure to follow telephone regulations, rules, and guidelines in connection with "fraudulent" charges and interruption of phone service ·Case no. 1:06-cv-00253-MEF-VPM Nails v. Compass Bank Dothan April 12, 2006 Recommendation for dismissal without prejudice for lack of jurisdiction of an amended complaint purporting to state negligence claims arising from closure of accounts of deposit Apparently undeterred by the notice provided in each case regarding the limited ju ris dic tio n of federal courts, the glaring deficiencies of her lawsuit, and penalties for abusing t h e privilege of proceeding without paying filing fees and costs, Nails ended her brief hiatus in August with the filing of this lawsuit along with Nails v. Dothan Rescue Mission,(case no. 1 :0 6 -cv -0 0 7 3 7 -W K W -S R W , filed 08/16/06). II. PRESENT COMPLAINT T h e undated Complaint ­ neither sworn nor notarized ­ is reproduced here verbatim an d without editing errors in spelling, punctuation, or grammar: - - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - - - -- - - - - - IN THE UNITED STATES DISTRICT COURT FOR THE COUNTY OF MONGEMERY THE STATE OF ALABAMA COMPLAINT OF NEGLIGENCE The case follows under the Jurisdiction Actitcel III Section 2a Constitutional law. Subject 3 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 4 of 8 matter question controversy of $10,000.00 dollars. The City of Dothan has not appropriately responded to the complaint in writing of the City having no sidewalks on Virginia street were the plaintiff was struck by a vehicle. The plaintiff has responded to the City request of procedures to speak with the City representative the Mayor, no settlement or response was made after the plaintiff and the City Mayor discussion The plaintiff is bring the civil case before the court searching for the due process rights of the court. ------------------------------------------------------------------------ - -- - -- - -- - -- - -- - -- - -- - -- - -- III. DISCUSSION Irres p ec ti v e of its procedural defects, this Complaint so clearly lacks jurisdictional su bs tan ce that this court's scarce judicial resources should not be burdened. Neither federal q u e s tio n jurisdiction nor diversity jurisdiction is invoked; nothing alleged can be construed re as o n a bly to implicate any right or privilege secured by federal law or the Constitution, and t h e re is neither diverse citizenship nor the requisite amount of controversy even if a cause of ac tio n could be discerned. Nor can this court's federal question jurisdiction be invoked t h ro u g h an amendment grounded on the essence of this plaintiff's grievance ­ that "the City o f Dothan has not appropriately responded to the complaint in writing of the City having no s id e w alk s on Virginia street were the plaintiff was struck by a vehicle." The complaint clearly lac k s any arguable basis in law and fact. In sum, this is a frivolous action which should not b u r de n the court or an Alabama municipality dependent on taxpayers' support. P u rs u an t to 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii), the court shall dismiss a case 4 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 5 of 8 b y a plaintiff proceeding in forma pauperis at any time if it determines that the complaint is friv o lo u s or malicious OR fails to state a claim on which relief may be granted OR seeks monetary relief against a defendant who is immune from such relief. At any stage of the p ro c e e d in g s , a case is frivolous for the purpose of § 1915(e)(2)(B) when it appears that the p lai n ti ff "has little or no chance of success." See Denton v. Hernandez, 504 U.S. 25 (1992); C a r r o ll v. Gross, 984 F.2d 392, 393 (11 th Cir. 1993). A district court may conclude that a case h as little or no chance of success and dismiss the complaint before service of process when it d e t e rm i n e s from the face of the complaint that the factual allegations are "clearly baseless" or t h a t the legal theories are "indisputably meritless." Neitzke v. Williams, 490 U.S. 319, 327 (1 9 8 9 ); Denton, 504 U.S. at 32-33. Nails is advised, as this court has consistently reminded similarly situated pro se lit ig a n t s , that the privilege of filing a federal court lawsuit without prepayment of filing fees p ro p e rly acknowledges a "right of access to courts" which is constitutionally secured for all A m e ric an citizens. The privilege is subject, however, to valid and reasonable limitations d e s i g n e d not only to conserve limited judicial resources but also to prevent abuse by u n le arn e d laymen who may be tempted to seize the privilege as a license for limitless or misg u id e d forays into federal court with bootless claims and grievances unresolved in other forums o r for which there simply is no remedy. Frivolous or malicious lawsuits duties against any defe n dan ts ­ corporate, public, institutional, or individual ­ automatically result in in c o n v e n ie n c es , burdens, and costs, associated with defense even to the extent of securing 5 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 6 of 8 d is m is s al from the action. T h is court also deems it appropriate now to advise Nails that pro se litigants are also b o u n d to honor Rule 11 of the Federal Rules of Civil Procedure, which provides in p ert ine n t part at Rule 11(b): B y presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is c e rt ify in g that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,-- (1) it is not being presented for any improper purpose, such as to harass or to cause u n n e c e s s ary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by ex ist i n g law or by a nonfrivolous argument for the extension, modification, or reversal o f existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if s p e c ifi c ally so identified, are likely to have evidentiary support after a reasonable o p p o rt u n i t y for further investigation or discovery. A plaintiff may incur a substantial penalty for non-compliance with this rule by filing a federal court lawsuit without first conducting "an inquiry reasonable under the c i rc u m s t a n c e s " in order to inform his "knowledge, information, and belief" about the merits o f the lawsuit. Rule 11(c)(2) provides: A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly s it u at e d . Subject to the limitations in subparagraphs (A) and (B), the sanction m ay consist of, or include, directives of a nonmonetary nature, an order to pay 6 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 7 of 8 a penalty into court, or, if imposed on motion and warranted for effective d e t e rre n c e , an order directing payment to the movant of some or all of the re as o n ab le attorneys' fees and other expenses incurred as a direct result of the v io l at i o n . IV . CONCLUSION B ec a u s e the complaint fails to state any cognizable claim for relief in this court, and is p at e n t ly frivolous, it is the Recommendation of the Magistrate Judge that this action be d ism iss e d with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that the Plaintiff file any objections to the this R e c om m e n d a tion not later than September 21, 2006. Any objections filed must specifically i d e n t ify the findings in the Magistrate Judge's Recommendation to which the party is o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u r t. The parties are advised that this Recommendation is not a final order of the court and, t h e re fo re , it is not appealable. F ailu re to file written objections to the proposed findings and advisements in the M ag is trat e Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from attacking o n appeal factual findings in the Recommendation accepted or adopted by the District Court e x c e p t upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 t h Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also 7 Case 1:06-cv-00760-WKW-DRB Document 5 Filed 09/06/2006 Page 8 of 8 B on ne r v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding p re c e d e n t all of the decisions of the former Fifth Circuit handed down prior to the close of b u s in es s on September 30, 1981. D o n e this 6 t h day of September, 2006. /s / Delores R. Boyd D E L O R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE 8

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