JOHNSON v. THOMAS
| Decision Date | 08 April 2011 |
| Docket Number | No. 4:10-CV-151-BR,4:10-CV-151-BR |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | STEVEN GLENN: JOHNSON Plaintiff, v. SCOTT E. THOMAS, et al., Defendants. |
OPINION TEXT STARTS HERE
This matter is before the court on the 2 February 2011 declaration and request of plaintiff Steven Glenn: Johnson ("plaintiff) to proceed in forma pauperis and for an extension of the time to serve defendants. (DE # 8.) Plaintiff's motion for preliminary injunction (DE # 6) is also before the court.
Plaintiff is proceeding in this action pro se. On 20 October 2010, plaintiff filed his complaint against 49 defendants, including state and county governmental employees, officials, and entities, and several private attorneys. (DE # 1.) Plaintiff paid the $350 filing fee at the time that he filed the complaint. (Id.) On 20 October 2010, he also filed a motion for a temporary restraining order, which the court denied. (DE ## 2, 5.) On 5 November 2010, plaintiff filed a motion for preliminary injunction. (DE # 6.)
On the same day that plaintiff filed his complaint, the Clerk of Court issued a summons against each of the defendants. However, none of the 49 defendants have been served or have appeared in this case. On 2 February 2011, instead of filing proof of service, plaintiff filed the instant request for leave to proceed in forma pauperis and for an extension of time to serve the defendants. (DE # 8.) Plaintiff also asked the court to order the United States Marshal to serve the defendants with his complaint. (Id.)
Plaintiff was not incarcerated at the time that he filed his complaint. (See Compl., DE # 1, ¶ 155 ().) At some point between the time that he filed his complaint and the time that he filed his request for in forma pauperis status, plaintiff apparently became incarcerated at a state correctional facility. (See Decl. & Req. to Proceed In Forma Pauperis, DE # 8, at 1, 3.) Plaintiff asserts that he has been rendered indigent due to his current incarceration and that, as a result, he cannot afford to pay the costs of serving the defendants in this action. (Id. at 1.)
The court first notes that this case is not subject to the screening requirements of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, because plaintiff was not a prisoner at the time he brought his lawsuit. See 28 U.S.C. § 1915A(a), (c);1 Michau v. Charleston County, S.C., 434 F.3d 725, 727 (4th Cir. 2006); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) ().
Although plaintiff has already paid the filing fee necessary to commence this action (DE # 1), he has nonetheless requested that the court grant him in forma pauperis status so that the United States Marshal may help him effectuate service. The procedure for proceeding in forma pauperis is governed by 28 U.S.C. § 1915. In support of his request, plaintiff has submitted a "declaration" that includes a statement of his income, his monthly expenses, his assets, and the amount of deposits made to his prison trust fund account for the past six months.2 In addition, it appears that plaintiff has three dependents - his wife and two children. (Decl. & Req. to Proceed In Forma Pauperis, DE # 8, at 2, ¶ 6.)
The current federal poverty guideline for a four-person household is $22,350. See Annual Update of the Department of Health and Human Services Poverty Guidelines, 76 Fed. Reg. 3637 (Jan. 20, 2011). The information provided in plaintiff's declaration with respect to his income is somewhat imprecise because he was self-employed prior to his incarceration. Nonetheless, it appears that his level of income over the twelve months prior to his request for in forma pauperis status was very close to the federal poverty guideline. (Decl. & Req. to Proceed In Forma Pauperis, DE # 8, at 2, ¶ 3.) Furthermore, plaintiff's monthly expenses appear to slightly exceed the level of his income. (Id.) Plaintiff does not have a checking or savings account, and he does not own a home or a vehicle. (Id. ¶¶ 4-5.) A plaintiff does not have to be absolutely destitute in order to enjoy the benefit of the in forma pauperis statute. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Here, plaintiff has sufficiently demonstrated his poverty, and his request for in forma pauperis status is GRANTED.
However, where a plaintiff has obtained leave to proceed in forma pauperis, the court must also conduct a review of the plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2). Under this statute, a district court must dismiss all or any part of an action found to be frivolous or malicious, which fails to state a claim upon which relief can be granted, or which seeks money damages from a defendant immune from such recovery. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Michau, 434 F.3d at 728; Cochran v. Morris, 73 F.3d 1310, 1315-16 (4th Cir. 1996) (). 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). In addition, 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, 129 S. Ct. 1937, 1949 (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.3 Here, plaintiff is proceeding pro se. Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This 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).
In this case, plaintiff has filed a 59-page complaint with 31 separate claims against 49 defendants, including state and county governmental employees, officials, and entities, and several private attorneys. The precise nature of some of plaintiffs claims is unclear. Plaintiff makes a general allegation that he is proceeding pursuant to 18 U.S.C. §§ 4, 241, 242, 1961-1968 and 42 U.S.C. §§ 1983, 1985(2), 1985(3), 1986, 1988. (Compl. ¶ 66.) He summarizes the myriad of injuries that he has suffered as follows:
Plaintiff/Petitioner Steven-Glenn, by the actions and lack of action of the [defendants] has been injured by unlawful arrest, restraint, unlawful trespass, seizure of his person and property, posed with excessive bail, the expense of the excessive bail to a bail bondsman, put under various fraudulent bonds, suffered cruel and unusual punishment by being denied insulin and/or proper carbohydrates to maintain health as a juvenile Type I Diabetic, put under coercion, put under duress, denied the right to a speedy trial in one case, denied the right to counsel of choice, with no choice of counsel among lawfully sworn attorneys at law, entry [of] a plea against his will and over his objection, assaulted and battered by unsworn persons without a weapon while suffering unlawful detention, assaulted and battered by unsworn persons with a weapon while being faced with unlawful arrest or, otherwise, kidnapped, conspired against to extort funds by all [defendants], victimized through abuse of process, obstruction of justice, unlawful seizing of an automobile without a warrant, denial of use of same property, unlawful seizing or stealing of a state issued license plate, unlawful seizing or stealing of a motorcycle without a warrant, denial of use of same property, denial of due process, denial of his right to purge civil contempt charges and jailed for the same, denial of equal protection under the law by virtue of the fact that all [defendants] fail to hold office for which they have under taken [sic] the duties, public defamation of character, humiliation, undue burden of time to deal with charges disallowing the means to provide for himself and his family, as well as, excessive emotional stress and trauma.
(Compl. ¶ 143.)
Although it is difficult to unravel plaintiff's scrambled allegations, what is clear from the face of the complaint is that plaintiff's claims are united by the common allegation that the individual defendants have failed to "take, subscribe and file in the proper office the oath of office found in Article VI, Section 7 of the North Carolina Constitution." (Compl. ¶ 58.) Because all of the individual defendants have allegedly failed to take and/or file the oath of office, plaintiff insists that these defendants are barred from occupying their offices, that they are subject to the criminal penalties found in N.C. Gen. Stat. § 14-229, and that their actions are not lawful. (Id ¶¶ 60, 70, 74, 83, 89, 100, 118, 121, 141, 166.) Plaintiff alleges that because he has challenged the authority of the individual defendants, they have "conspired to further compound the injuries to the Petitioner's rights and make a remedy unavailable to him, drown him in litigation and defame his character as a partial cover up and diversion to Defendant's [sic]/Respondents' own criminal activities." (Id. ¶ 61.) Plaintiff also alleges that his "liberty continues to be in immediate and further peril due to the ongoing acts of Defendant's [sic] illicitly proceeding criminally against Steven-Glenn while the defendants have failed...
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