ALLEN v. GERBER COLLISION & GLASS
| DERRICK ALLEN |
| GERBER COLLISION & GLASS |
| 1:2022cv00623 |
| August 4, 2022 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Civil Rights: Other |
| 28 U.S.C. ยง 1331 Fed. Question |
| Plaintiff |
Docket Report
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| Filing 11 USCA Pre-filing review case docketed. USCA Case Manager: Carla A. Dietz. USCA Case Number 22-261. (Sheets, Jamie) |
| Filing 10 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re #9 Notice of Appeal Without Fee Payment. (Sheets, Jamie) |
| Filing 9 NOTICE OF APPEAL Without Fee Payment as to #8 Judgment, by DERRICK ALLEN. (Sheets, Jamie) |
| Filing 8 JUDGMENT signed by CHIEF JUDGE THOMAS D. SCHROEDER on 8/26/2022. For the reasons set forth in the Order filed contemporaneously with this Judgment; that this action is dismissed under 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. (Sheets, Jamie) |
Filing 7
ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 8/26/2022 adopting the Magistrate Judge's Recommendation; that this action is dismissed under 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. (Sheets, Jamie)
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| FILED IN ERROR TEXT RECOMMENDATION that the Court dismiss this action under 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. In #2 Complaint, Plaintiff alleges that Defendants (a business and two of its employees) violated the Seventh, Eighth, and Fourteenth Amendments (as made actionable by 42 U.S.C. s 1983), because they refused to refund a pro-rated portion of a storage rental fee when Plaintiff vacated the storage unit. Those allegations fail as a matter of law in an obvious manner that renders this action frivolous. To begin, #2 Complaint lacks any factual allegations to support an inference that Defendants acted under color of state law so as to trigger potential civil liability under Section 1983. Further, the civil jury trial right guaranteed by the Seventh Amendment does not create any right to enforce consumer disputes and the refusal to refund part of a rental fee neither amounts to cruel and unusual punishment or any other form of Eighth Amendment violation nor denies Plaintiff the equal protection of the laws or any other protection guaranteed by the Fourteenth Amendment. In connection with many prior actions, the Court repeatedly has advised Plaintiff of the state-action requirement and the frivolousness of his attempts to convert routine consumer disputes into federal constitutional claims. Plaintiff's persistence in filing frivolous federal actions supports the denial of future pauper applications under the discretionary authority of 28 U.S.C. 1915(a)(1), without consideration of the substance of his related complaints under the provisions of Section 1915(e)(2)(B). See Blakely v. Wards, 738 F.3d 607, 612 (4th Cir. 2013); see also id. at 619-22 (Wilkinson, J., concurring), 624 (Duncan, J., concurring). Plaintiff has compounded his waste of this Court's resources by filing this action in the wrong venue, as #2 Complaint notes that all events occurred and Defendants all reside in the Eastern District of North Carolina; indeed, #2 Complaint even asks as relief for the transfer of this case to the United States District Court for the Eastern District of North Carolina (which request the Court should deny in light of the frivolous nature of this action). Issued by MAG/JUDGE L. PATRICK AULD on 08/16/2022. (AULD, L.) Modified on 8/16/2022 to mark filed in error - entered in wrong case. (Sheets, Jamie) |
| CASE REFERRED to CHIEF JUDGE THOMAS D. SCHROEDER RE: RECOMMENDED RULING by MAGISTRATE JUDGE. (Engle, Anita) |
| Filing 6 OBJECTION TO RECOMMENDED RULING - MAGISTRATE JUDGE re Recommended Ruling - Magistrate Judge, by Plaintiff DERRICK ALLEN. Response to Objections to R&R due by 8/29/2022. (Sheets, Jamie) |
| Filing 5 Notice of Mailing Recommendation: Objections to R&R due by 8/29/2022. Objections to R&R for Pro Se due by 9/1/2022. (Sheets, Jamie) |
| TEXT RECOMMENDATION that the Court dismiss this action under 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. In #2 Complaint, Plaintiff alleges that Defendant (a business) violated the Eighth, Thirteenth, and Fourteenth Amendments (purportedly as made actionable by 18 U.S.C. s 242, the criminal counterpart of 42 U.S.C. s 1983), because Defendant refused to repair Plaintiff's vehicle without payment, as he contended Defendant should because Plaintiff allegedly satisfied his insurance deductible in connection with a prior accident. Those allegations fail as a matter of law in an obvious manner that renders this action frivolous. To begin, #2 Complaint lacks any factual allegations to support an inference that Defendant acted under color of state law so as to trigger potential civil liability under Section 1983 (at least as to any claim under the Eighth and Fourteenth Amendments). Further, refusal to repair Plaintiff's vehicle does not amount to cruel and unusual punishment or any other form of Eighth Amendment violation, does not enslave Plaintiff in contravention of the Thirteenth Amendment, and does not deny him the equal protection of the laws or any other protection guaranteed by the Fourteenth Amendment. In connection with many prior actions, the Court repeatedly has advised Plaintiff of the state-action requirement and the frivolousness of his attempts to convert routine consumer disputes into federal constitutional claims. Plaintiff's persistence in filing frivolous federal actions supports the denial of future pauper applications under the discretionary authority of 28 U.S.C. 1915(a)(1), without consideration of the substance of his related complaints under the provisions of Section 1915(e)(2)(B). See Blakely v. Wards, 738 F.3d 607, 612 (4th Cir. 2013); see also id. at 619-22 (Wilkinson, J., concurring), 624 (Duncan, J., concurring). Issued by MAG/JUDGE L. PATRICK AULD on 08/14/2022. (AULD, L.) |
| TEXT ORDER terminating #1 Application to Proceed in District Court without Prepaying Fees or Costs, in light of the recommendation of dismissal entered this day. Issued by MAG/JUDGE L. PATRICK AULD on 08/14/2022. (AULD, L.) |
| Case ASSIGNED to CHIEF JUDGE THOMAS D. SCHROEDER and MAG/JUDGE L. PATRICK AULD. (Sheets, Jamie) |
| Motions Referred to MAG/JUDGE L. PATRICK AULD RE: #1 APPLICATION to Proceed IFP. (Sheets, Jamie) |
| Filing 4 Notice of Signed Pro Se Electronic Service Consent by DERRICK ALLEN 78DERRICKALLEN@GMAIL.COM. (Sheets, Jamie) |
| Filing 3 CIVIL COVER SHEET. (Sheets, Jamie) |
| Filing 2 COMPLAINT against GERBER COLLISION & GLASS, filed by DERRICK ALLEN. (Sheets, Jamie) |
| Filing 1 APPLICATION to Proceed IFP by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Sheets, Jamie) |
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