Tolbert v. GMAC Mortgage Corporation et al (JC)(MAG+)

Filing 4

REPORT AND RECOMMENDATIONS that Plaintiff's 2 Application to Proceed Without Prepayment of Fees and Affidavit be DENIED; that this action be dismissed without prejudice prior to service of process; and that this matter be referred to the Office of the United States Attorney for any review, investigation, and criminal investigations deemed appropriate. Objections to R&R due by 4/21/2005. Signed by Judge Delores R. Boyd on 4/5/2005. (dmn)

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Tolbert v. GMAC Mortgage Corporation et al (JC)(MAG+) Doc. 4 Case 2:05-cv-00283-MHT-DRB Document 4 Filed 04/05/2005 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION STEVE TOLBERT, Plaintiff, ) ) ) ) ) ) ) ) ) ) v. GMAC MORTGAGE CORPORATION, et al., Defendants. 2:05-CV-0283-T R E C O M M E N D A T IO N OF THE MAGISTRATE JUDGE P u r s u a n t to the referral of this case for consideration and disposition or r e c o m m e n d a t i o n on all pretrial matters (Doc. 3, April 1, 2005), the Magistrate Judge r e c o m m e n d s , for the good cause herein explained, that Plaintiff not be allowed to proceed in forma pauperis and that this action be DISMISSED pursuant to Rule 11, Federal Rules of C i v i l Procedure, and 28 U.S.C. 1915. I. O n or around March 28, 2005, an African American female presented to the Clerk's o f f ic e for filing the then-unsigned complaint in this action and purported to have "power of a t t o rn e y " to sign the complaint for the incarcerated named plaintiff, Steve Tolbert Asked to s h o w documentation for her authority, the woman could not produce any and left without p r o v i d in g any identification; she returned the next morning with the same complaint with its voluminous attachments along with an Application to Proceed Without Prepayment of F e e s and Affidavit, each signed "Mr. Steve Tolbert #136371" apparently by the same person, Case 2:05-cv-00283-MHT-DRB Document 4 Filed 04/05/2005 Page 2 of 5 w h o also "declare[d] under penalty or perjury" to the truthfulness and correctness of each. T h o u g h the Clerk permitted the complaint and application to be docketed, she reported prom ptly and properly her suspicion that the named plaintiff had not signed either pleading. F u r t h e r investigation disclosed a case filing on January 18, 2002 in this court, Civil Action N o . 02-0-77-N, by the same plaintiff then incarcerated with the same inmate number and a comparison of the signatures on the pleadings filed by him in that action provided strong c o r r o b o ra t i o n for the clerk's suspicion that he had not signed the documents docketed in this c a s e file.1 T h e complaint presented purports to state a cause of action for "fraudulent f o r e c lo s u re." Named defendants are (a) GMAC Mortgage Corporation, charged with wro ngfu lly effecting a foreclose sale in November 2004 on a house in Wetumpka allegedly p u r c h a s e d by the plaintiff in December 2002; (b) Kimberlee Forbus, Adam Forbus, and J o h n Logan, the Wetumpka residents who purchased and/or now reside in the house through f o r e c lo s u r e ; and (c) Elmore County Sheriff Bill Franklin, sued for alleged failures of duty in c o n n e c t io n with plaintiff's alleged criminal complaints against the individual defendants. No divers ity of citizenship is alleged and, in fact, the complaint affirmatively demonstrates the a b s e n c e of such diversity. The complaint makes uneducated and unfounded allegations of c o n s t it u t io n a l violations for federal jurisdiction, but the absence of state action and any The foregoing facts have been supplied to the court by the Deputy Clerk involved, Chiquita Baxter, who made contemporaneous reports to Deputy Clerk, Debbie Yates and to the Clerk, Debbie Hackett The Magistrate Judge has examined the signatures on this plaintiff's pleadings in his prior action and compared them to those on the pleadings now submitted. 2 1 Case 2:05-cv-00283-MHT-DRB Document 4 Filed 04/05/2005 Page 3 of 5 plaus ible federal question is indisputably shown. In sum, the complaint is wholly frivolous a n d beyond cure for the purpose of stating any cognizable federal action. II Ru le 11(a), Federal Rules of Civil Procedure, requires the signature of a party or his a t t o rn e y on every pleading, and Rule 11(b) cautions that even unrepresented parties, upon p r e s e n ti n g to the court a pleading, "is certifying that to the best of the person's knowledge, i n f o rm a t i o n , and belief, formed after an inquiry reasonable under the circumstances, " the p l e a d in g is not being presented for any improper purpose and is otherwise grounded in fact a n d in law. When a complaint is presented over the signature of one who is not the named p a r t y , it is deficient per se under Rule 11. A party's pro se status may be weighed in determ inin g Rule 11 regularity, but with respect to the fundamental requirement of truthfu lness, that status is irrelevant. E v e n if the record did not so clearly reflect fraud and perjury attributable to the uni d e n t if i e d person who presented this complaint for filing in the name of the incarcerated i n m a t e , 28 U.S.C. 1915(e)(2) dictates that this action not be allowed without prepayment of t h e filing fee because it is so clearly jurisdictionally deficient; frivolous or malicious; fails to state a claim on which relief may be granted; and/or attempts to state a claim against a def end ant who is immune. 3 Case 2:05-cv-00283-MHT-DRB Document 4 Filed 04/05/2005 Page 4 of 5 III. Ac cord ingly, it is the Recommendation of the M agistrate Judge that 1 . plaintiff's Application, construed as a Motion, to Proceed without Prepayment of Fee s and Affidavit (Doc. 2, March 29, 2005) be DENIED. 2 . this action be DISMISSED WITHOUT PREJUDICE PRIOR TO SERVICE O F PRO C E S S . 3 . this matter be referred to the Office of the United States Attorney for any review, inv estig ation , and criminal investigations deemed appropriate. It is further ORDERED that the Clerk of the Court file this Recommendation of the M agistrate Judge and serve by mail a copy thereof on the incarcerated plaintiff at the i n s ti t u ti o n a l address provided. The Plaintiff is DIRECTED to file any objections to the this Recommendation not later than April 21, 2005. Any objections filed must spec ifically identify the findings in the Magistrate Judge's Recommendation objected to. Frivo lous, conclusive, or general objections will not be considered by the District Court. Failu re to file written objections to the proposed findings and recommendations in the M agistrate Judge's report shall bar the party from de novo determination by the district court o f issues covered in the report and shall bar the party from attacking on appeal factual f i n d in g s in the report accepted or adopted by the district court except upon grounds of plain e r r o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (11th Cir. Unit B. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r i c h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the 4 Case 2:05-cv-00283-MHT-DRB Document 4 Filed 04/05/2005 Page 5 of 5 d e c i s io n s of the former Fifth Circuit handed down prior to the close of business on S e p t e m b e r 30, 1981. D O N E THIS 5 T H DAY OF APRIL, 2005. / s / Delores R. Boyd D E L O R ES R. BOYD UNITED STATES MAGISTRATE JUDGE 5

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