Opinion
C/A No.: 3:19-2561-JFA-SVH
09-13-2019
S.D.J., a minor, by and through her mother, custodial parent, and legal guardian Diana Biernaski Jordan, Plaintiff, v. Franklin Odell Jordan and Evelyn Nates Jordan, Defendants.
REPORT AND RECOMMENDATION
Diana Biernaski Jordan ("Plaintiff"), proceeding pro se, filed this action, purportedly on behalf of her minor child, S.D.J. ("Minor"), alleging Defendants Franklin Odell Jordan and Evelyn Nates Jordan ("Defendants") violated Minor's civil rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis and dismiss the complaint without prejudice to file in an appropriate court and without issuance and service of process. I. Factual and Procedural Background
Plaintiff alleges she legally married Defendants' son, Phillip DeWayne Jordan ("Decedent"), on September 22, 1984, and the two divorced on May 18, 1993. [ECF No. 1 at 1]. She claims she and Decedent resumed a relationship in 2002 that resulted in the birth of Minor, but that Decedent's name does not appear on Minor's birth certificate. Id. Plaintiff maintains Decedent died on December 13, 2017, and that Minor has been unable to collect Social Security Survivor's Benefits because Defendants have not submitted to DNA testing necessary to prove Decedent was Minor's biological father. Id.
Plaintiff requests the court waive fees and appoint an attorney guardian ad litem for Minor to obtain DNA testing from Defendants. Id. at 2. II. Discussion
A. Standard of Review
Plaintiff filed her complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Denial of Motion of Proceed In Forma Pauperis
"A district court has discretion to grant or deny an in forma pauperis petition filed under § 1915," but its discretion "is limited to a determination of "the poverty and good faith of the applicant and the meritorious character of the cause in which the relief was asked." Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980) (citing Graham v. Riddle, 554 F.2d 133 (4th Cir. 1977); Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46 (1915).
There is no clear precedent in the Fourth Circuit concerning a magistrate judge's authority to issue an order denying an application to proceed in forma pauperis. The Sixth Circuit has concluded that a magistrate judge cannot issue an order to deny an application to proceed in forma pauperis. Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990). Specifically, the Woods court ruled a denial of an application to proceed in forma pauperis by a magistrate judge is the functional equivalent of an involuntary dismissal, which cannot be granted by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A). Id. at 187. The Tenth and Fifth Circuits have reached similar conclusions. See Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); Donaldson v. Ducote, 373 F.3d 622, 623-25 (5th Cir. 2004). Therefore, the undersigned submits a report and recommendation to preserve Plaintiff's opportunity to obtain de novoreview by a district judge on objections.
The Fourth Circuit has held that, absent consent to the jurisdiction of the magistrate judge, proper review of a magistrate judge's denial of a motion to proceed in forma pauperis is in the district court. Gent v. Radford Univ., No. 99-1431, 1999 WL 503537, at *1 (4th Cir. July 16, 1999). The court did not specify the standard of review. Id.
A litigant is not required to show she is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948). However, the "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who . . . would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In Carter v. Telectron, Inc., 452 F. Supp. 939 (S.D. Tex. 1976), the court enunciated three legal tests used to determine whether a person should proceed in forma pauperis under 28 U.S.C. § 1915:
(1) Is the litigant barred from the federal courts by the reason of her "impecunity"?Id. at 943; see also Murray v. Gossett, C/A No. 3:13-2552-CMC-SVH, 2013 WL 5670907, at *2 (D.S.C. Oct. 17, 2013) (adopting and incorporating Report and Recommendation).
(2) Is her access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute her last dollar, or render herself destitute, to prosecute her claim?
"The question under 28 U.S.C. § 1915 is whether the litigant is 'unable to pay' the costs, and the answer has consistently depended in part on litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend." Williams v. Spencer, 455 F. Supp. 205, 209 (D. Md. 1978). Where the evidence before the court "neither suggest[s] nor establish[es] that [a] parent['s] interests are antagonistic to [her] interests, that [her] parent [is] indifferent to [her] situation, that [her] parent [is] unwilling to pay or lend [her] the costs of [the] suit, or that [her] parents are financially unable to fund [the] litigation," the court should consider "the financial resources of the minor" and the parent. Id.
Plaintiff completed the Application to Proceed in District Court Without Prepaying Fees or Costs ("Form AO 240") using Minor's name and financial information. See ECF No. 3. Plaintiff signed her name in the space for "[A]pplicant's signature." Id. Plaintiff declined to submit Form AO 240 using her name and financial information.
As discussed in greater detail below, Plaintiff is ineligible to bring suit on behalf of Minor. However, even the court were to permit Plaintiff to proceed with the case on Minor's behalf, Plaintiff's financial resources would be relevant to the court's decision to grant or deny the motion to proceed in forma pauperis. By attempting to bring the case on behalf of her child, Plaintiff has demonstrated that her interests are not antagonistic to Minor's interests and that she is not indifferent to Minor's situation. See Williams, 455 F. Supp. at 209.
Plaintiff appears to have filed suit on behalf of Minor to circumvent the court's prior rulings. Plaintiff has filed 22 cases in this court, in addition to this case, since June 11, 2018. See Jordan v. Wilson, 3:18-1589-JFA-SVH; Jordan v. Foldessey, 3:18-2083-JFA-SVH, Jordan v. J.P. Morgan Chase Bank, 3:18-2195-JFA-SVH; 3:18-2280-JFA-SVH, Jordan v. J.P. Morgan Chase Bank, 3:18-2361-JFA-SVH; Jordan v. Gunter, 3:18-2789-JFA-SVH; Jordan v. Richland County Register of Deeds, 3:18-2857-JFA-SVH; Jordan v. Day, 3:18-2869-JFA-SVH; Jordan v. Internal Revenue Service, 3:18-2997-JFA-SVH; Jordan v. Snyder, 3:19-1821-JFA-SVH; Jordan v. Ballentine, 3:19-1865-JFA-SVH; Jordan v. Snyder, 3:19-2054-SVH; Jordan v. Hite, 3:18-2040-JFA-SVH; Jordan v. United States Department of Labor, 3:18-2805-JFA-SVH; Jordan v. Wilson, 3:19-1518-JFA-SVH; Jordan v. Commissioner of Social Security Administration, 1:18-2446-JFA-SVH; Jordan v. United States Department of Labor, 3:18-2754-JFA-SVH; Jordan v. U.S. Department of the Treasury, 3:18-2937-JFA-SVH; Jordan v. District 5 Foundation for Educational Excellence, 3:18-2924-JFA-SVH; Jordan v. Jordan, 3:18-2925-JFA-SVH; Jordan v. District 5 Foundation for Educational Excellence, 3:19-772-JFA-SVH; Jordan v. Szabo, 3:19-1502-JFA-SVH. The court has denied Plaintiff's motions to proceed in forma pauperis in multiple cases because she has a history of filing frivolous cases and owns substantial assets such that she would not be rendered destitute or incur an undue hardship through payment of the filing fee. See Jordan v. Gunter, 3:18-2789-JFA-SVH; Jordan v. Richland County Register of Deeds, 3:18-2857-JFA-SVH; Jordan v. Day, 3:18-2869-JFA-SVH; Jordan v. Snyder, 3:19-1821-JFA-SVH; Jordan v. United States Department of Labor, 3:18-2805-JFA-SVH; Jordan v. U.S. Department of the Treasury, 3:18-2937-JFA-SVH; Jordan v. District 5 Foundation for Educational Excellence, 3:18-2924-JFA-SVH; Jordan v. Jordan, 3:18-2925-JFA-SVH; Jordan v. District 5 Foundation for Educational Excellence, 3:19-772-JFA-SVH. Thus, Plaintiff is likely financially able to fund the litigation, and her resources must be reviewed to determine whether the court should grant leave to proceed in forma pauperis in this case.
Plaintiff has declined to submit financial information relevant to the court's inquiry and this court has previously held that she does not meet requirements to proceed in forma pauperis. Therefore, the undersigned recommends the court deny Plaintiff's motion to proceed in forma pauperis.
2. Plaintiff Ineligible to Bring Suit on Behalf of Minor
"[N]on-attorney parents generally may not litigate the claims of their minor children in federal court." Myers v. Loudoun Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005); see also M.D. v. School Bd. of City of Richmond, 560 Fed. App'x 199, 202 (4th Cir. 2014) ("To ensure minors' rights are vigorously and competently protected, we have squarely held that non-attorney parents are barred from representing their children in federal court.").
As a non-attorney, Plaintiff lacks the necessary skills to competently and vigorously protect Minor's legal rights in federal court. Thus, Plaintiff may not bring suit on behalf of Minor, and the undersigned recommends the district judge summarily dismiss the case. Because Plaintiff is not permitted to represent her minor child in this action, she is unable to cure the deficiency identified herein by amendment.
3. Lack of Subject Matter Jurisdiction
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). "[D]istrict courts may not exercise jurisdiction absent a statutory basis." Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005). Congress granted federal courts jurisdiction over two general types of cases: those that "aris[e] under" federal law, pursuant to 28 U.S.C. § 1331, and those "in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, pursuant to 28 U.S.C. § 1332. Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).
"[A] case arises under federal law when federal law creates the cause of action asserted." Gunn v. Minton, 568 U.S. 251, 257 (2013). "[T]he mere presence of a federal issue in a in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813 (1986). "The defining inquiry is 'the degree to which federal law must be in the forefront of the case and not collateral, peripheral or remote.'" Gregg v. County of Darlington, C/A No. 4:07-60-RBH, 2004 WL 5310270 (D.S.C. May 14, 2004) (citing Merrell Dow, 478 U.S. at n.11). Thus, federal courts "possess jurisdiction to hear 'only those cases in which a well-pleaded complaint establishes . . . that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Bryan v. BellSouth Communications, Inc., 377 F.3d 424, 429 (4th Cir. 2004) (quoting Franchise Tax Bd. V. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983).
Although Plaintiff alleges the case arises under federal law because she filed a claim for Social Security Survivor's Benefits on behalf of Minor, she is seeking to establish her child's paternity. Establishment of paternity may render Minor eligible for Social Security Survivor's Benefits, but Plaintiff's right to relief does not necessarily depend on a substantial question of federal law. "In determining whether an applicant is the child or parent of a fully or currently insured individual" for the purpose of determining eligibility for Social Security Survivor's Benefits, "the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual . . . was domiciled at the time of his death." 42 U.S.C. § 416(h)(2)(A) "Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such." Id. Thus, pursuant to 42 U.S.C. § 416(h)(2)(A), Minor's entitlement to Social Security Survivor's Benefits is determined based on the state probate court's determination as to whether she is Decedent's child for the purpose of taking intestate personal property. Therefore, Plaintiff's case is premised on a matter of state probate law and does not arise under federal law such that the requirements of federal question jurisdiction are satisfied. In light of the foregoing, the undersigned recommends the case be dismissed for lack of subject matter jurisdiction. Because this court lacks jurisdiction to decide a matter of State probate law, Plaintiff is unable to cure the deficiency identified herein by amendment.
4. Ineligibility for Appointment of Counsel
Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." "If it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him." Gordon, 574 F.2d at 1173.
Plaintiff requests the court appoint "a pro bono or indigent fund eligible guardian ad litem who is an attorney" to represent Minor's interests. [ECF No. 1 at 2]. Because Plaintiff does not have a colorable claim subject to the jurisdiction of this court, the undersigned recommends the district judge deny Plaintiff's motion to appoint counsel. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis and dismiss the complaint without prejudice to file in an appropriate court and without issuance and service of process.
IT IS SO RECOMMENDED. September 13, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).