Maliki v. Vienna WV Police Dep't, Case No. 2:16-cv-06289

MAJED ABDULLAH MALIKI, Plaintiff, v. VIENNA WV POLICE DEPARTMENT, andVIENNA WV POLICE CHIEF AND OFFICERS, Defendants.

Case No. 2:16-cv-06289

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON

May 26, 2017

PROPOSED FINDINGS AND RECOMMENDATION

This matter is assigned to the Honorable Thomas E. Johnston, United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court are the defendants' Motion to Dismiss (ECF No. 6) and the defendants' Motion to Dismiss for Failure to Prosecute (ECF No. 9).

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

On July 13, 2016, the plaintiff, Majed Abdullah Maliki, filed a Complaint (ECF No. 2) and an Application to Proceed Without Prepayment of Fees and Costs (ECF No. 1). The Complaint, which has been construed as being filed under 42 U.S.C. § 1983, alleges that the plaintiff's civil rights have been violated at the hands of law enforcement for "nearly a decade." Specifically, the Complaint states:

[F]rom the Spring of 2007 to date (nearly a decade), I have been continuously and unlawfully harassed, arrested, detained, humiliated, and denied the civil rights afforded to me by the Constitution of the United States of America. Furthermore, I claim that actions of injustice and misapplication of the law have made any chance of living a normal life non- existent. These actions, made by nearly every officer within the department including the chief, have literally broke down and debilitated me mentally, emotionally, and ultimately physically.

(ECF No. 2 at 1).

The Complaint further alleges that "these actions were entirely made knowingly with malice and that these actions were performed with ill will and the intent of creating hardship and deprivation of fairness and that all were performed/fueled under/by a cloud of racial motivation." (Id. at 2). The plaintiff further alleges that it would be "humanly impossible" to identify each specific incident and that "much evidence has been lost due to a separate pending case." (Id.) He seeks $5.1 million in compensation. (Id.)

Pursuant to 28 U.S.C. § 1915(e)(2)(B), because the plaintiff is seeking to proceed without prepayment of fees and costs, the court is obliged to screen the case to determine if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). However, before the court had conducted that screening and ruled on the Application, the defendants filed an Answer to the Complaint (ECF No. 4), and subsequently filed a Motion to Dismiss (ECF No. 6) and a Memorandum of Law in support thereof (ECF No. 7), asserting that the Complaint fails to state a claim upon which relief can be granted. After the plaintiff failed to respond to the Motion to Dismiss, and further failed to respond to discovery requests served on him by the defendants, the defendants also filed a Motion to Dismiss for Failure to Prosecute (ECF No. 9), a Memorandum of Law in support thereof (ECF No. 10), and a Supplemental Brief in support thereof (ECF No. 12).¹

STANDARD OF REVIEW

Pro se complaints are held to less stringent standards than those drafted by attorneys, and the court is obliged to construe liberally such complaints. However, in Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed that a case should be dismissed for failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain "enough facts to state a claim to relief that is plausible on its face." While the complaint need not assert "detailed factual allegations," it must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555.

The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), a civil rights case. The Court wrote:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555, 127 S. Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted). Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. * * *

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

129 S. Ct. at 1949-50.

ANALYSIS

A. Dismissal under Fed. R. Civ. P 41(b) is appropriate due to the plaintiff's failure to participate and prosecute this matter.

On July 25, 2016, the defendants filed an Answer to the Complaint (ECF No. 4). Then, on August 2, 2016, the defendants served discovery requests on the plaintiff (see Certificate of Service contained in ECF No. 5). They subsequently filed their initial Motion to Dismiss on August 31, 2016. (ECF No. 6). After the plaintiff failed to respond to the Motion to Dismiss and the defendants' discovery requests, the defendants filed a Motion to Dismiss for Failure to Prosecute (ECF No. 9) and a Memorandum of Law in support thereof (ECF No. 10). They also filed a separate Motion to Compel concerning their unanswered discovery requests. (ECF No. 11). Again, the plaintiff failed to respond in any way to these documents. Consequently, the defendants filed a Supplemental Brief in support of their Motion to Dismiss for Failure to Prosecute (ECF No. 12), advising the court of all these facts and requesting the dismissal of this matter with prejudice.

The defendants' motion documents rely on Rule 41(b) of the Federal Rules of Civil Procedure, which provides for the dismissal of an action for the plaintiff's failure to prosecute or to comply with the court's rules or orders. See Link v. Wabash R. Co., 370 U.S. 626, 629 (1962) ("The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted."); see also McCargo v. Hedrick, 545 F.2d 393 (4^th Cir. 1976). However, in determining whether such a harsh sanction is appropriate, the court must balance the following factors: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay in prosecution; (3) the presence or absence of ahistory of plaintiff deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).

The defendants contend that the plaintiff is wholly at fault for the inaction and delay in this matter, and that the plaintiff's actions demonstrate a history of dilatory conduct that prejudices their ability to defend this matter. Furthermore, the defendants assert that no sanction less drastic than dismissal is appropriate given the plaintiff's history of failing to respond and participate in this matter. The undersigned agrees.

Accordingly, the undersigned proposes that the presiding District Judge FIND that the plaintiff has wholly failed to prosecute this civil action. Therefore, it is respectfully RECOMMENDED that the presiding District Judge DISMISS this matter, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

B. Dismissal under Fed. R. Civ. P. 12(b)(6) is also appropriate because the Complaint fails to state a claim upon which relief can be granted.

Even if the District Court determines that dismissal for failure to prosecute is not warranted, the defendants' initial Motion to Dismiss asserts that the Complaint should be dismissed because it fails to state any plausible claim for relief. As noted above and in the defendants' Memorandum of Law, in order to survive a motion to dismiss, the Complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Twombly, supra, 550 U.S. at 570. (ECF No. 7 at 2). Thus, it must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, supra, 556 U.S. at 678. (Id.) A civil rights complaint can survive a motion to dismiss only if it "alleges the specific conduct violating the plaintiff's right, the time and the place of that conduct, and theidentity of the responsible officials." Preast v. McGill, 65 F. Supp.2d 395, 403 (S.D. W. Va. 1999) (quotations marks and citation omitted).

42 U.S.C. § 1983, provides in pertinent part:

Every person, who under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings

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