Wise et al v. The United States Department of Agriculture et al

Filing 7

ORDER adopting 6 Memorandum and Recommendations and granting 1 Motion for Leave to Proceed in forma pauperis. Signed by US District Judge Terrence W. Boyle on 6/16/2017. Copy sent via US Mail to Eddie Wise and Dorothy Wise at 212 Gatlin St., Williamston, NC 27892. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:17-CV-4-BO
EDDIE WISE and DOROTHY WISE,
Plaintiffs,

v.

)
)
)
)

)

ORDER

)
)
THE UNITED STATES DEPARTMENT OF
)
AGRI~ULTURE and TOM VILSACK, Secretary )
and unnamed successor,
)
)
Defendants.
)

This matter is before the Court on the Memorandum and Recommendation ("M&R") of
United States Magistrate Judge James E. Gates [DE 6] and for consideration of the motion to
proceed in forma pauper is. [DE 1].
I.

Memorandum and Recommendation
Judge Gates has filed an M&R recommending that plaintiff Dorothy Wise be dismissed

as a plaintiff as she has failed to sign the motion to proceed in forma pauperis, the financial
disclosure statement, and the notice of self-representation. A district court is required to review
an M&R de novo if a party specifically objects to it or in cases of plain error. 28 U.S.C. §
636(b)(l)(B); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The district court is only required to
make a de novo determination of those specific findings to which the plaintiff has actually
objected. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Plaintiffs have not objected to
the M&R. The Court finds no error and ADOPTS the M&R in its entirety. Plaintiff Dorothy
Wise is DISMISSED.

II.

Motion,to Proceed lnforma Pauperis and frivolity review
Plaintiff Eddie Wise having demonstrated appropriate evidence of inability to pay the

required costs of court, his motion to proceed informa pauperis [DE 1] is GRANTED. The
clerk is DIRECTED to file the complaint. [DE 1-1].
A claim proceeding in forma pauperis may be dismissed at any time if it is frivolous. 28
U.S.C. § 1915(e)(2)(B)(i). A complaint is frivol_ous if "it lacks an arguable basis either in law or
fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A plaintiff proceeding informa pauperis
must "meet certain minimum standards of rationality and specificity," and delusional or fantastic
claims which are clearly baseless are subject to dismissal. Adams v. Rice, 40 F.3d 72, 74 (4th
Cir. 1994). A court may also dismiss

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or any part of a complaint which fails to state a claim

upon which relief can be granted or which seeks money damages from a defendant immune from
such recovery. 28 U.S.C. § 1915(e)(2)(B).
Mr. Wise's complaint seeks a declaration under 28 U.S.C. § 2201, 28 U.S.C. § 1331, and
5 U.S.C. § 706. Mr. Wise and wife Dorothy operate a livestock farm in Nash County, North
Carolina and have previously received farm operating loans under the Unites States Department
of Agriculture-Farm Service Agency (USDA-FSA) Farm Loan Program. The complaint alleges
that on at least three different occasions Mr. and Mrs. Wise have requested a hearing before the
Department of Agriculture's Administrative Law Judge seeking an expedited formal hearing on
the merits. The complaint further requests that the Agency stop all offsets against plaintiffs until
the hearings and all appeals are completed. In the background of the complaint, Mr. Wise
alleges that his rights under the Equal Credit Opportunity Act (ECOA) were recklessly
disregarded by their USDA-FSA loan manager and that he has suffered actual damages and
severe emotional distress. Mr. Wise further states that the government has violated the Pigford

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Consent Decree by attempting to foreclose on the subject property and by failing to provide a
hearing on the merits.
Other than the reliefrequested by Mr. Wise, his complaint is generally comprised of
copied language from other cases, including his own proceeding filed in the United States
District Court for the District of Columbia. See Wise v. United States, Civil Action No. 1501331(CKK),2015 WL 8024002, at *1 (D.D.C. Dec. 4, 2015), aff'd, 654 Fed. App'x 2 (D.C.
Cir. 2016). Indeed, the background section of the instant complaint copies verbatim from the
memorandum opinion entered by the D.D.C. on December 4, 2015. Id That memorandum
opinion and related order granted a motion to dismiss the Wises complaint for failure to state a
claim upon which relief could be granted and dismissed the remaining defendants on res judicata
grounds. Beyond reciting language from an order entered in a prior case involving the Wises,
the complaint currently before the undersigned does no more than provide block quotations from
other cases on, inter alia, the Due Process Clause of the Fifth Amendment, the Administrative
Procedures Act, and the preclusive effect of administrative proceedings on ECOA claims.
Mr. Wise has failed to allege any facts, much less sufficient facts to state a claim that is
facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court would
note that Mr. Wise is no stranger to the federal courts and the rules and procedures which
accompany the filing of an action. See, e.g., Wise, No. CV 15-01331(CKK),2015 WL 8024002,
at *5 n. 2 (discussing cases involving the Wises in the E.D.N.C.); see also United States v. Wise,
No. 5:14-CV-844-FL (E.D.N.C.); Wise v. United States Dept. ofAgriculture, No. 4:13-CV-234BO (E.D.N.C.). Finally, although it is difficult to discern from the complaint what actions by the
USDA Mr. Wise specifically complains of, it has already been determined that the USDA did

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not abuse its discretion by not holding a formal hearing as requested by the Wises. Wise, 2015
WL 8024002 *8.
CONCLUSION
Accordingly, for the foregoing reasons, the Memorandum and Recommendation of Judge
Gates is ADOPTED and plaintiff Dorothy Wise is DISMISSED. The motion to proceed in

forma pauperis is GRANTED and the complaint is DISMISSED in its entirety for failure to state
a claim.

SO ORDERED.
This the

J..k_ day of June, 2017.

TERRENCE W. BOYLE
UNITED STATES

.

msnUC1UDGE

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