Qadir v. Wilson et al

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATION: After careful review of the R&R and the objections, for the reasons stated by the magistrate judge and the reasons set forth in this opinion, the 9 R&R is ACCEPTED. Plaintiff 9;s objections to the R&R are OVERRULED. Plaintiff's motion for leave to file an amended complaint, ECF No. 18 , is DENIED. Plaintiff's motion to appoint counsel, ECF No. 19 , is DENIED. Accordingly, Plaintiff's complaint is DISMISSED without prejudice and without issuance and service of process. IT IS SO ORDERED. Signed by Chief Judge Terry L Wooten on 9/17/2018. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Muhammad W.K. Abdul Qadir,

Case No. 4:17-cv-02193-TLW

PLAINTIFF,
vs.
Latrell S. Wilson; Donald Martin; Sgt. Roy
Drake; Cheraw City Police Department;
Insurance Adjustor Rodney Spain; Progressive
Direct Insurance; Unknown Federal U.S.
Postal Employees; Attorney David H.
Maybank; Attorney Bradley L. Lanford;
Attorney Michael T. Coulter; Attorney
Raymond D. Turner; Anderson Used Auto
Parts (All-State), unknown owner; Credit
Collection Services Commercial; South
Carolina Department of Motor Vehicles;
Judge Roger Henderson; Alan Wilson, S.C.
Attorney General; and Unknown Processors;
All of the Above Defendants acting individual
capacity as well as co-conspirator of the
conspiracy,

Order

DEFENDANTS.
Plaintiff Muhammad W.K. Abdul Qadir, proceeding pro se and in forma pauperis, filed
this action alleging various claims against the Defendants, who allegedly conspired to frame
Plaintiff for a traffic ticket after a minor car accident as part of a false insurance claim. ECF No.
1. The matter now comes before the Court for review of a Report and Recommendation (R&R)
filed on September 5, 2017, by Magistrate Judge Hodges, to whom this case was assigned pursuant
to the provisions of 28 U.S.C. § 636(b)(l)(B) and Local Civil Rule 73.02(B)(2), DSC. In the R&R,
the magistrate judge recommends that Plaintiff’s case be dismissed without prejudice and without
issuance and service of process for failure to state a claim upon which relief can be granted because
it does not state any cognizable legal claim. ECF No. 9. Plaintiff timely filed objections to the
R&R on September 19, 2017. ECF No. 11. Plaintiff also moved for leave to file an amended
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complaint. ECF No. 12. However, Plaintiff did not include a proposed amended complaint, and
the Court granted Plaintiff an extension of time to file a motion with a proposed amended
complaint. See ECF No. 15. Plaintiff timely filed his motion for leave to amend, with a proposed
amended complaint, on December 27, 2017. ECF No. 18. Plaintiff has also filed a motion to
appoint counsel. ECF No. 19. These matters are now ripe for decision.
In reviewing the R&R, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections . . . . The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the Report
thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge's
findings or recommendations.
Wallace v. Hous. Auth. of City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the R&R and
the objections. Plaintiff’s objections largely restate the jurisdictional and factual statements from
the initial complaint and contain conclusory statements regarding error by the magistrate judge.
After careful review, the Court finds that Plaintiff’s objections are without merit.
Further, Plaintiff asserts that his complaint should not be dismissed for failure to state a
claim because claims are generally not dismissed summarily and without issuance and service of
process under Rule 12(b)(6). While it is true that such a dismissal generally requires that the
complaint be frivolous, see, e.g., Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed.
2d 338 (1989), the Fourth Circuit has held that 28 U.S.C. § 1915(e)(2)(B) applies to non-prisoner,
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pro se litigants who proceed in forma pauperis and that courts reviewing such claims have
discretion to dismiss a complaint without issuance and service of process if the court finds the
complaint fails to state a claim. See Michau v. Charleston Cty., S.C., 434 F.3d 725, 728 (4th Cir.
2006). Accordingly, the magistrate judge reviewed Plaintiff’s claims under the proper standard
and properly recommended summary dismissal for failure to state a claim. Therefore, Plaintiff’s
objections to the R&R are OVERRULED.
Additionally, Plaintiff has filed a motion for leave to amend his complaint. The Court notes
that leave to amend should be freely given as the interests of justice require and should only be
denied where the defendant would suffer prejudice, the moving party acted in bad faith, or the
amendment would be futile. See Fed. R. Civ. P. 15(a)(2); Steinburg v. Chesterfield Cty. Planning
Comm’n, 527 F.3d 377, 390 (4th Cir. 2008).
Although there is no indication of bad faith and defendants have not been served and would
not be prejudiced, allowing Plaintiff’s amended complaint would be futile. The proposed amended
complaint does not differ in any meaningful respect from Plaintiff’s initial complaint. It is typed
rather than handwritten; however, to the extent Plaintiff has added additional facts or clarified
previously alleged facts, the proposed amended complaint fails to state a claim for the same reasons
articulated in the R&R. Moreover, to the extent the amended complaint can be read to allege any
new claims, those claims would be claims under state law and dismissed for lack of subject matter
jurisdiction, as the magistrate judge explained in the R&R. Accordingly, the amended complaint
would be futile, and Plaintiff’s motion for leave to file it, ECF No. 18, is DENIED.
Finally, Plaintiff asserts he is entitled to counsel pursuant to Turner v. Rogers, 564 U.S.
431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011). While the Court may appoint counsel for indigents
as allowed by 28 U.S.C. § 1915(e)(1), there is no reason to do so here. Courts should only appoint

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counsel in exceptional circumstances, as determined by two factors: “the type and complexity of
the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163
(4th Cir. 1984), abrogated by Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 109
S. Ct. 1814, 104 L. Ed. 2d 318 (1989). When weighing these factors, courts should appoint counsel
if “a pro se litigant has a colorable claim but lacks the capacity to present it.” Id.
Plaintiff points to Turner, but his reliance is misplaced. Plaintiff filed a civil complaint
seeking damages and other relief. Whisenant governs the decision to appoint counsel for indigents
in cases such as Plaintiff’s. Turner, by contrast, addressed whether counsel must be provide when
a party in family court faces incarceration for civil contempt. It does not apply to these facts.
Applying the proper standard under Whisenant, Plaintiff is not entitled to counsel. As
discussed above and by the magistrate judge in the R&R, Plaintiff’s claims lack merit. Moreover,
this case is at the pleading stage where the complexity is not so great. See, e.g., Banks v. Gore, et
al, No. 16-7512, 2018 WL 2979508, at *5 (4th Cir. June 13, 2018). For these reasons, Plaintiff’s
motion to appoint counsel, ECF No. 19, is DENIED.
After careful review of the R&R and the objections, for the reasons stated by the magistrate
judge and the reasons set forth in this opinion, the R&R is ACCEPTED. Plaintiff’s objections to
the R&R are OVERRULED. Plaintiff’s motion for leave to file an amended complaint, ECF No.
18, is DENIED. Plaintiff’s motion to appoint counsel, ECF No. 19, is DENIED. Accordingly,
Plaintiff’s complaint is DISMISSED without prejudice and without issuance and service of
process.
IT IS SO ORDERED.
___________________________
s/Terry L. Wooten
Terry L. Wooten
Chief United States District Judge

September 17, 2018
Columbia, South Carolina
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