Opinion
No. 5:18-CV-525-D
11-15-2018
JENNIFER G. HERNANDEZ, Plaintiff, v. TREVOR GRAHAM, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court for a memorandum and recommendation on Plaintiff's application to proceed in forma pauperis [DE-1], TRO Motion [DE-4], and frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-5]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, but the complaint fails to state a claim and is frivolous. Accordingly, it is recommended that the application to proceed in forma pauperis be denied, the TRO Motion be denied, and the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . .'" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. DISCUSSION
Plaintiff's complaint references her TRO Motion and, construing the pro se Plaintiff's filings liberally, the facts alleged in the documents together are as follows: "Defendants," although the only named defendant is Trevor Graham, kidnapped Plaintiff's then nine-year-old daughter in January 2003; Defendants have repeatedly refused to return Plaintiff's daughter to her; Defendants attempted to kill Plaintiff with toxins causing Plaintiff to flee to Virginia; Defendants hired a hitman to kill Plaintiff; and Defendants will continue to commit crimes against the United States if Plaintiff's TRO Motion is not granted. TRO Mot. [DE-4]. Plaintiff alleges violations of the Due Process and Confrontation Clauses of the United States Constitution and of the federal kidnapping statute, 18 U.S.C. § 1201. Id. In the TRO Motion, Plaintiff seeks a temporary restraining order to protect herself and her daughter and grandchild until Defendants are captured and tried. Id. In the complaint, Plaintiff states her requested relief as follows: "Based upon Trial Jury decision I've undergone too many bodily damages to request relief therefrom, I'm requesting this be done by the outcome during sentencing by my attorney or Jurors." Compl. [DE-1-1] at 3.
Having carefully reviewed Plaintiff's allegations, the undersigned finds that Plaintiff's complaint lacks an arguable basis in fact and fails to state a claim. The only named Defendant, Trevor Graham, is not mentioned in the complaint or TRO Motion and it is not apparent who he is or how he is involved in the alleged kidnapping scheme. For this reason, the court cannot discern whether Plaintiff has stated a constitutional claim against Graham, and the pleading requirements of Iqbal and Twombly are not satisfied. 556 U.S. at 678; 550 U.S. at 570. Plaintiff also alleges violation of the federal kidnapping statute, 18 U.S.C. § 1201, but only the United States can enforce its criminal laws, and the statute affords no private cause of action. See Harnden v. Croswell-Lexington Cmty. Sch., No. 15-CV-12738, 2016 WL 2731188, at *2 (E.D. Mich. May 11, 2016) ("[T]here is no private right of action for purported violations of the Federal Kidnapping Act.") (collecting cases). Finally, judicial notice is taken of Plaintiff's prior action in this court against Wake County Social Services, and others, where she alleged that in 2003 her daughter was wrongfully removed from her custody and placed for adoption without her permission, which belies the allegations here that her daughter was kidnapped in 2003. See Hernandez v. Wake Cty. Soc. Servs., No. 5:03-CV-959-BO (E.D.N.C. 2003). Accordingly, it is recommended that Plaintiff's complaint be dismissed as frivolous and for failure to state a claim.
III. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that the application to proceed in forma pauperis be denied, the TRO Motion be denied, and the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until December 3, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 15 day of November, 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge