Rankin v. Johnson et al

Filing 6

ORDER DISMISSING without prejudice. ORDERED that Plaintiff's Motion to Proceed In Forma Pauperis 5 is DENIED. Signed by District Judge Max O. Cogburn, Jr on 01/07/2014. (Pro se litigant served by US Mail.)(thh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:13-cv-00293-MOC-DLH
TIMOTHY WAYNE RANKIN,

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Plaintiff,
Vs.
ED GRAYBEL,
Defendant.

ORDER

THIS MATTER is before the court on plaintiff’s Application to Proceed Without
Prepayment of Fees and Affidavit.
FINDINGS and CONCLUSIONS
I.

Application to Proceed In Forma Pauperis
The court has carefully considered plaintiff’s affidavit which shows in excess of

$36,000.00. Review of the Health and Human Services Poverty Guidelines provides that for a
household of two persons such income is well above the poverty level.

See

http://www.aspe.hhs.gov/poverty. Further, close review of the affidavit reveals that plaintiff has
income in excess of his monthly expenses and that he has the means to pay the filing fee as well
as the costs of service. His application will be denied.
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

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be granted, or seeks monetary relief against a defendant who is immune from suit. Id.1 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). Review of the pleading in this matter reveals that plaintiff, a
resident of Avery County, which is within the Western District of North Carolina, is attempting
to sue a Tennessee judge, prosecutor, sheriff, social services worker, all of whom appear to be
residents of Johnson City, Tennessee. While he has checked off the box for a civil conspiracy in
violation of his civil rights, plaintiff’s claim appears to be under 42, United States Code, Section
1983, as plaintiff claims that
The court refuses to correct itself, and has violated my rights for so long. I
feel if I don’t do something I will never have my life back. I have always tried to
do my best for my kids.
Complaint (#1) at 6. Read together, it appears that plaintiff’s Complaint concerns actions taken
against him in the courts of the State of Tennessee in regards to child support payments.
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court must dismiss an in forma pauperis
complaint if “the action . . . (i) is frivolous or malicious” or if the action “(ii) fails to state a claim
upon which relief may be granted.” A complaint is frivolous “where it lacks an arguable basis in
either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness “embraces
1
Plaintiff is advised that a “frivolousness” determination does not necessarily mean that a plaintiff’s
concerns are frivolous. Here, it means that the Complaint on its face fails to state a cause of action which this court
has the jurisdiction to resolve.

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not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. Section
1915(e) gives judges “the unusual power to pierce the veil of the complaint’s factual allegations
and dismiss those claims whose factual contentions are clearly baseless.”
In conducting the frivolousness analysis, the Court of Appeals for the Fourth Circuit
instructs that courts should “conduct a flexible analysis, in light of the totality of the
circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Federal Med. Ctr.
Butner, 376 F.3d 252, 257 (4th Cir.2004). The Nagy court held further that
[t]he overriding goal in policing in forma pauperis complaints is to ensure that the
deferred payment mechanism of § 1915(b) does not subsidize suits that prepaid
administrative costs would otherwise have deterred. In implementing that goal,
district courts are at liberty to consider any factors that experience teaches bear on
the question of frivolity.
Id.
Here, the court finds that plaintiff has failed to state a claim which is cognizable in the
Western District of North Carolina as it involves actions and actors all in the State of Tennessee.
In contending that this court has jurisdiction over his claim and that this is an appropriate venue
to hear such claim, plaintiff has asserted federal question jurisdiction under Section 1983 and/or
Section 1985. From the face of the Complaint, which reveals that plaintiff resides in this district
and that all the defendants reside in the Eastern District of Tennessee, this court lacks jurisdiction
over the government-official defendants residing in Tennessee for acts allegedly committed in
the Eastern District of Tennessee. This means that even if this court were to allow the matter to
proceed in this court, it would be subject to dismissal for lack of personal jurisdiction of transfer.
As the filing fee has yet to be paid, the court has also considered whether to require
plaintiff to pay his filing fee in this district and then transfer the matter to Tennessee. The court

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declines to do so as jurisdiction is a threshold matter and this court is without jurisdiction to
make further frivolousness determinations which the court in Tennessee may well conduct if this
matter is filed in that district. Further, close review of the Complaint reveals no allegations as to
dates of the allege adverse state actions. Thus, with no ability to discern that any statute of
limitations dates are in immediate jeopardy, the court will dismiss this action without prejudice
and instruct plaintiff to file his Complaint with the Eastern District of Tennessee.

ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s Motion to Proceed In Forma
Pauperis (#5) is DENIED. This action is DISMISSED without prejudice as frivolous under §
1915(e)(2)(B) and for failure to state a claim under § 1915(e)(2)(B)(ii) which can be adjudicated
in this court as the court lacks personal jurisdiction over this action.

IT IS FURTHER ORDERED IN ACCORDANCE WITH 28 U.S.C. § 1951(d), and
the Clerk of this court is respectfully instructed to issue process and to provide such process
along with sufficient service copies of the Complaint, as well as copies of this Order, to the
United States Marshal and that the United States Marshal is respectfully instructed to serve a
copy of the Complaint, Summons, and this Order upon the defendant in accordance with Rule
4(i)(1), Federal Rules of Civil Procedure. All costs of service shall be advanced by the United
States.

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Signed: January 7, 2014

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