Cooper v. South Carolina, The State of et al
ORDER denying Plaintiff's 23 motion to amend as futile and REPORT AND RECOMMENDATION recommending that this action be summarily dismissed without prejudice and without issuance and service of process. (Objections to R&R due by 3/20/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) Signed by Magistrate Judge Paige J. Gossett on 3/6/2018. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
The State of South Carolina; The State of North )
Carolina; Time Warner Cable; Galleria Club )
Lane Apartment; United States Government, )
C/A No. 3:17-3205-CMC-PJG
REPORT AND RECOMMENDATION
The plaintiff, Nathaniel Cooper, proceeding pro se, brings this civil action. This matter is
before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having
reviewed the Amended Complaint in accordance with applicable law, the court concludes that it
should be summarily dismissed without prejudice and issuance and service of process, and that
Plaintiff’s motion to amend his pleading should be denied.
Factual and Procedural Background
Plaintiff filed his first Complaint in this action on November 28, 2017. In his original
complaint, Plaintiff indicated the court had jurisdiction over this matter because the constitutions of
the United States, South Carolina, and North Carolina are at issue, as well as various federal statutes
including the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. He provided lists of ways in
which his rights have been violated, but they are mostly lists of constitutional and statutory
provisions and other quasi-legal terms and phrases, without accompanying facts. (Compl., ECF No.
1 at 5.) Plaintiff also referenced a patent that he claimed was issued by the United States Patent
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Office on May 2, 2017. (Id. at 8.) He claimed the “patent delay and interference” has caused a delay
in the mass production of a product that could impact the “opioid problem.” (Id.) He alleged that
various credit bureaus made an error on his credit report that damaged him. (Compl., ECF No. 1 at
9.) He also alleged he incurred various injuries, such as harassment, intimidation, and bullying at
Defendant Galleria Club Lane Apartments. (Id. at 9.) He sought damages and restraining orders
to keep “all offenders” from his family and property. (Id. at 8.)
On December 14, 2017, the court issued an order directing Plaintiff to bring the case into
proper form for the issuance and service of process by filing a properly completed summons form.
(ECF No. 7.) The order warned Plaintiff that his failure to comply with the order within the time
permitted would subject his case to dismissal for failure to prosecute and for failure to comply with
an order of the court under Federal Rule of Civil Procedure 41. (Id. at 1-2.) The court also issued
an order warning Plaintiff that the Complaint was subject to summary dismissal because it was
frivolous, and providing Plaintiff the opportunity to file an amended complaint to correct the
deficiencies identified by the court. (ECF No. 8.) That order liberally construed the Complaint as
asserting patent infringement claims and a claim under the Fair Credit Reporting Act, but found that
the claims were frivolous because they lacked sufficient factual support. (Id. at 3-4.)
Plaintiff responded to the proper form order by filing proof of service forms, rather than a
completed summons as the court instructed.1 (ECF No. 20.) At this time, the case is still not in
proper form for service of process because Plaintiff has failed to file a properly completed summons.
The court had previously granted Plaintiff two extensions of time to comply with the order.
(ECF Nos. 11 & 14.)
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Plaintiff also filed an Amended Complaint and motion to amend with a proposed Second
Amended Complaint. (ECF Nos. 17 & 23). In these new pleadings, Plaintiff indicates he is no
longer pursuing a patent infringement claim, and he fails to provide sufficient factual matter to
support his Fair Credit Reporting Act claim. Plaintiff also dropped most of the defendants, and the
only remaining defendants are the State of South Carolina, State of North Carolina, Time Warner
Cable, Galleria Club Lane Apartments, and the United States Government. The only defendants
Plaintiff mentions in the body of the amended pleadings are Time Warner Cable and Galleria Club
Lane Apartments, but Plaintiff does not provide any facts or allegations against them that resemble
a legal claim for relief. (Am. Compl, ECF No. 17 at 7.; Mot. to Amend, ECF No. 23-1 at 6.) And
he again provides lists of ways in which his rights have been violated, but they are mostly lists of
constitutional and statutory provisions and other quasi-legal terms and phrases, without
Standard of Review
Under established local procedure in this judicial district, a careful review has been made of
the pro se pleadings. The court possesses the inherent authority to review pro se pleadings to ensure
that subject matter jurisdiction exists and that a case is not frivolous, even if the pleading is not
subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490
U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious’
action, but there is little doubt they would have power to do so even in the absence of this statutory
provision.”); Ross v. Baron, 493 F. App’x 405, 406 (4th Cir. 2012) (unpublished) (“[F]rivolous
complaints are subject to dismissal pursuant to the inherent authority of the court, even when the
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filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously
frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted);
see also Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)
(“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the
required filing fee[.]”); Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A]
district court’s obligation to review its own jurisdiction is a matter that must be raised sua sponte,
and it exists independent of the ‘defenses’ a party might either make or waive under the Federal
Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981)
(providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without
issuing a summons or following other procedural requirements).
This court is required to liberally construe pro se complaints, which are held to a less
stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King
v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal
construction does not mean that the court can ignore a clear failure in the pleading to allege facts
which set forth a claim cognizable in a federal district court. See Weller v. Dep’t of Soc. Servs., 901
F.2d 387 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Rule
8 of the Federal Rules of Civil Procedure for “all civil actions”).
The court finds Plaintiff’s Amended Complaint and proposed Second Amended Complaint
are frivolous. The new pleadings lack factual coherence and fail to state any recognizable legal
claim for relief against the named defendants. The new pleadings also fail to cure the deficiencies
identified by the court in its December 14 order regarding amendment of the complaint. As the court
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has already warned Plaintiff that his original pleading was frivolous, and because Plaintiff’s
amendment and proposed amendment to the pleading have not cured that deficiency, the court finds
this action should be summarily dismissed for lack of subject matter jurisdiction. See Mallard, 490
U.S. at 307-08; Ross, 493 F. App’x at 406.
Failure to prosecute or comply with an order of this court
Also, as indicated above, Plaintiff has failed to comply with the court’s order to bring this
action into proper form for the issuance and service of process. “The authority of a court to dismiss
sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not
by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962). As well as inherent authority, a court may sua sponte dismiss a case for lack of
prosecution under Federal Rule of Civil Procedure 41(b). Id. at 630. The United States Court of
Appeals for the Fourth Circuit has held that a court should “ascertain (1) the degree of personal
responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of
a drawn out history of deliberately proceeding in a dilatory fashion, and (4) the existence of a
sanction less drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.
1982) (internal quotation marks and citation omitted).
In the instant action, Plaintiff is proceeding pro se; therefore, he is solely responsible for his
refusal to comply with the court’s orders. Further, because Plaintiff has failed to fully comply with
an order of this court, even after he was given two extensions of time to comply with the order, and
in light of the frivolousness of Plaintiff’s pleadings, it does not appear that any sanction less drastic
than dismissal is available. Therefore, this case should also be dismissed pursuant to Federal Rule
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of Civil Procedure 41(b). See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (finding that
dismissal of a suit did not constitute abuse of discretion where the plaintiff “failed to respond to a
specific directive from the court”).
Based on the foregoing, the court recommends that this action be summarily dismissed
without prejudice and without issuance and service of process.2
March 6, 2018
Columbia, South Carolina
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
Plaintiff’s attention is directed to the important notice on the next page.
Also, Plaintiff’s motion to amend (ECF No. 23) is denied as futile because it is friviolous,
as explained herein. See Johnson v. Oroweat Foods Co. 785 F.2d 503, 510 (4th Cir. 1986) (“Leave
to amend, however, should only be denied on the ground of futility when the proposed amendment
is clearly insufficient or frivolous on its face.”).
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Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. “[I]n
the absence of a timely filed objection, a district court need not conduct a de novo review, but instead
must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P.
6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation
will result in waiver of the right to appeal from a judgment of the District Court based upon
such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
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