S.D.J. v. Jordan

• Decision Date: 13 September 2019
• Docket Number: C/A No.: 3:19-2561-JFA-SVH
• Court: U.S. District Court — District of South Carolina
• Parties: 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.

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.

C/A No.: 3:19-2561-JFA-SVH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

September 13, 2019

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.¹ 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.

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 legalremedy 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"?

(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?

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).

"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. RichlandCounty 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 5Foundation 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...