Opinion
5:21-CV-50-M
03-04-2022
TOMMY LEE STEVENS, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This pro se case is before the court, in part, for a frivolity review of the complaint [D.E. 1] filed by Plaintiff Tommy Stevens (“Plaintiff”). It is also before the court on two non-dispositive motions: (1) a motion for change of venue [D.E. 9]; and (2) a motion for relief from spoliation of evidence [D.E. 10]. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1). As set forth below, it will be recommended, based on the frivolity review, that Plaintiff's complaint be dismissed for failure to state a claim upon which relief can be granted. In addition, the undersigned DENIES Plaintiff's non-dispositive motions pending before the court [D.E. 9, 10] as frivolous and without merit, for the reasons stated below.
Absent such ruling, however, the undersigned would still have recommended these non-dispositive motions be denied as moot, consistent with the recommendation that Plaintiff's complaint be dismissed.
I. PLAINTIFF'S ALLEGATIONS
On February 3, 2021, Plaintiff filed a complaint [D.E. 1] consisting of a five-page handwritten document and attachments. In his complaint, Plaintiff sets forth a number of allegations against the United States Department of Health and Human Services (“Defendant”). Compl. [D.E. 1] at 1. Specifically, he alleges as follows:
All page citations herein are to the page numbers assigned by the court's CM/ECF electronic filing system.
“[P]laintiff was forced as being the subject of research[, ] . . . [which] included being implanted with a transceiver device which allowed defendants to lock on to my body allowing for signals to be transmitted and received to and from my body.” Id. at 2. “Defendant are holding me in false imprisonment . . . .” Id. Defendant is “attempting to extort money and private property from me, including a box of things my mother had saved for me . . . .” Id. at 3. Finally, he was delayed in filing the instant complaint by Defendant, who “attacked plaintiff's eyes by transmitting to plaintiff and rounding each eye socket, than swelling [his] eye balls much larger than normal, communicating threats of blinding me, so I stopped until I had a chance, they have nearly killed my dog.” Id.
The relief sought by Plaintiff appears as follows: (1) “Disconnect and stop all transmission to plaintiff's body, ” and (2) “$5,000,000,000.00 (Five Billion Dollars).” Id. at 4. Plaintiff's handwritten document also includes a list of “Related Cases, ” with what appear to be six case numbers listed. Id. at 5.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
A case brought by a person who is proceeding in forma pauperis, that is, without prepaying filing fees, is subject to a frivolity review under 28 U.S.C. § 1915(e)(2)(B). Plaintiff did prepay the filing fee, and therefore this case is not subject to a frivolity review under § 1915(e)(2)(B). This case is, though, subject to a frivolity review pursuant to the inherent authority of the court to conduct such reviews. See Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid.”); Mills v. Greenville Cty., 586 F.Supp.2d 480, 487 (D.S.C. 2008) (“Further, even though the full filing fee has been paid, the pro se and non-prisoner [plaintiff's] claims are also subject to an initial sua sponte review by the Court pursuant to the Court's inherent authority to ensure that a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous.”); see also Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 307 (1989) (“Statutory provisions may simply codify existing rights or powers. Section 1915(d), for example, 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.” (dicta)).
While not controlling, Section 1915(e)(2)(B), as well as the case law interpreting it, offers useful guidance on the standards that should govern a frivolity review conducted, as here, pursuant to the court's inherent authority. Section 1915(e)(2)(B) provides that the court must dismiss a case if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the complaint must “‘state[] a plausible claim for relief' that ‘permit[s] the court to infer more than the mere possibility of misconduct' based upon ‘its judicial experience and common sense.'” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
III. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
As a court in the Eastern District of North Carolina previously noted, Plaintiff “is a familiar, frivolous litigator in this court.” Order, Stevens v. Unknown Name Emps. of the U.S. Postal Serv., No. 5:10-CV-451-D (E.D. N.C. July 23, 2015), [D.E. 16] (citing Order, Stevens v. Unknown Named Emps. of the Dep't of Health and Hum. Servs., No. 5:14-CV-810-BO (E.D. N.C. Dec. 9, 2014), [D.E. 4] (dismissing complaint as frivolous); Stevens v. Unknown Name Clerk of U.S. Congressman Walter Jones, No. 5:11-CV-519-FL, 2011 WL 6046252, at *2 (E.D. N.C. Dec. 5, 2011) (dismissing complaint for failure to state a claim); Order, Stevens v. City of Mount Olive, No. 5:09-CV-283-D (E.D. N.C. July 2, 2009), [D.E. 2] (dismissing complaint as frivolous); Order, Stevens v. Unknown Name Emps., No. 5:09-CV-233-D (E.D. N.C. June 11, 2009), [D.E. 2] (dismissing complaint as frivolous and for failure to state a claim); Stevens v. Effler, No. 5:08-CV-618-H, 2009 WL 7110738, at *1 (E.D. N.C. May 28, 2009) (dismissing complaint as frivolous and for failure to state a claim), appeal dismissed as frivolous, 332 Fed.Appx. 830 (4th Cir. 2009) (per curiam); Order, Stevens v. Wake Med. Hosp., No. 5:02-CT-560-BO (E.D. N.C. Aug. 16, 2002), [D.E. 4] (dismissing complaint as frivolous); Order, Stevens v. Baker, No. 5:98-CV-278-BO (E.D. N.C. June 16, 1998), [D.E. 2] (dismissing complaint as frivolous)); see also Order, Stevens v. Unknown Name Emps. of the U.S. Postal Serv., No. 5:12-CV-451-D (E.D. N.C. Sept. 7, 2012), [D.E. 3] (dismissing complaint as frivolous); Order, Stevens v. Unknown Emps. of the N.C. Dep't of Health and Hum. Servs., No. 5:14-CV-810-BO (E.D. N.C. Dec. 5, 2014), [D.E. 4] (dismissing complaint as frivolous).
Here, Plaintiff's complaint, at best, contains irrational and nonsensical allegations and does not include sufficient supporting factual allegations to demonstrate a non-frivolous claim. See Denton, 504 U.S. at 33 (stating that “a finding of factual frivolousness is appropriate 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”); see also 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 simple ‘unbelievable.'”); Fetherson v. Blackmon, No. CV 0:16-3189-JFA-PJG, 2017 WL 1365114, at *2 (D.S.C. Feb. 9, 2017) (recommending dismissing as frivolous claims against a defendant that are “conclusory and lack supporting facts”), rep. & recomm. adopted, 2017 WL 1344616 (Apr. 12, 2017); Cush-El v. State, No. 1:16CV176, 2016 WL 1212427, at *2 (M.D. N.C. Mar. 10, 2016) (recommending dismissal of complaint wherein the “[p]laintiff recites claims that consist largely of incomprehensible ramblings composed of commercial and legal doctrines”), rep. & recomm. adopted, 2016 WL 1228626 (Mar. 28, 2016).
While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Off., No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. May 17, 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016). Plaintiff's complaint exceeds the permissible bounds. Because of the deficiencies in Plaintiff's complaint, he fails to state a claim upon which relief can be granted and is subject to dismissal.
Accordingly, IT IS RECOMMENDED that Plaintiff's complaint be DISMISSED.
IV. PLAINTIFF'S MOTIONS
In addition to his complaint discussed above, Plaintiff has submitted two additional motions for the court's consideration. Specifically, Plaintiff submitted a motion for change of venue [D.E. 9] and a motion for relief from spoliation of evidence [D.E. 10].
On March 8, 2021, Plaintiff filed a document titled “Amendment, ” which the court construes as a motion for change of venue. [D.E. 9]. In this filing, Plaintiff requests that this matter be transferred to the United States Court of Federal Claims. Id. at 1. He further requests that the court “use any federal statute that will apply” to the “transfer of venue.” Id. Plaintiff also includes allegations that Defendant has removed documents related to this matter from his home, in an attempt to stop Plaintiff from pursuing the matter. Id. at 1-3.
Then, on April 14, 2021, Plaintiff filed a “motion to request order to stop defendant(s) from tampering with evidence, or destroying evidence, nor taking evidence, ” which the court construes as a motion for relief from spoliation of evidence. [D.E. 10]. In this filing, Plaintiff again requests that this matter be transferred to the United States Court of Federal Claims, “by use of any federal law that will apply.” Id. at 1. He further states that he “is not sure if [he] used the correct public law or the wrong public law pertaining to an Executive Order, since plaintiff can't remember if the public law was changed before or after this instant complaint was filed in this court.” Id. at 2. Finally, he again alleges that “defendants constantly keep coming into my home and any room in the house by illegal entry, taking or change paperwork at will.” Id. And, “Defendants constant tampering and destruction of evidence is causing plaintiff a huge problem.” Id.
Similar to the allegations in his complaint, Plaintiff's allegations here are again rambling, disjointed, and nonsensical. As for Plaintiff's “request[] that this court transfer his complaint to the United States Court of Federal claims[, ] . . . [t]he court is not a delivery service.” Order, Stevens v. Unknown Name Emps. of the U.S. Postal Serv., No. 5:10-CV-451-D, at 2 (E.D. N.C. July 23, 2015), [D.E. 16]. Accordingly, the undersigned DENIES both of Plaintiff's non-dispositive motions [D.E. 9, 10] as they are frivolous and without merit.
V. CONCLUSION
For the reasons set forth above, IT IS RECOMMENDED that Plaintiff's complaint be DISMISSED as frivolous.
Pursuant to the authority under 28 U.S.C. § 636(b)(1), the undersigned DENIES the following non-dispositive motions pending before the court as frivolous and without merit:
(1) motion for change of venue [D.E. 9]; and
(2) motion for relief from spoliation of evidence [D.E. 10].
Absent such ruling, however, the undersigned would have recommended these non-dispositive motions be DENIED AS MOOT, consistent with the above recommendation that Plaintiff's complaint be dismissed.
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on Plaintiff or, if represented, his counsel. Plaintiff shall have until March 18, 2022 to file written objections to this Memorandum and Recommendation. The presiding District Judge must conduct his 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 a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar plaintiff 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).