Magistrate said what?

giphy7

I don’t think so, bub.

Defendants’ Motion to Dismiss for Failure to State a claim lists several deficiencies in Schmalfeldt’s Second Amended Complaint:

Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

a. Count I Each of these Defendants move to dismiss Count I because it fails to allege a libel of Plaintiff while he was a resident of South Carolina. 

b. Count II Each of these Defendants move to dismiss Count II because the Complaint does not allege any damages from the conspiracy. (Complaint Paragraph 23)

c. Count III Each of these Defendants move to dismiss Count III because the Complaint fails to allege any legal damage to Plaintiff while a resident of South Carolina. (Complaint Paragraph 30) 

d. Count IV Defendant Palmer moves to dismiss Count IV because the Complaint fails to allege a willful act in the use of the process that is not proper in the regular conduct of the proceeding. Such a willful act is an essential element of an Abuse of Process claim. Hainer v. American Medical Intern., Inc., 492 S.E.2d 103, 328 S.C. 128 (S.C., 1997) Russell v. Risher, 249 S.E.2d 908, 272 S.C. 182 (S.C., 1978) Food Lion v. United Food & Commercial Workers International Union, 351 S.C. 65, 567 S.E.2d 251 (S.C. App., 2002)

These seem pretty straightforward.

Paragraph a: Schmalfeldt doesn’t say in his complaint where the libel happened.  If you read Count I, there is not a single reference to the State of South Carolina.

Paragraph b: Schmalfeldt doesn’t claim what damages he sustains, rather, he just throws a number out there without any specifics as to how those numbers relate to damages.

Paragraph c: In Count III, Schmalfeldt cites no specifics of how defendants’ were reckless in South Carolina. Instead he runs off at the keyboard about how Trump’s Motion to Dismiss in the Kentucky case was denied, and how Kurt Eichenwald managed to have someone arrested because he looked at an animated gif on twitter.

Paragraph d: He spends a lot of time in Count IV expressing enormous butthurt from him having to travel to North Carolina and having a judge rule against him after he admitted to harassing Sarah Palmer.  He never explains how it meets the elements required for abuse of process.

So far so good.

So what does Schmalfeldt say in his opposition?

IV. The Question Presented by the Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Has Already Been Answered

One of the unique and very useful aspects of filing a pro-se case in the District of South Carolina is that such complaints are instantly submitted to a Magistrate Judge who is charged with determining whether a complaint, among other things, states a claim upon which relief can be granted. If the Magistrate Judge found that was not the case, her Report and Recommendation to the Presiding Judge would have included the recommendation that the complaint be dismissed. The Magistrate Judge has made no such finding, even though that was one of her specific purposes for examining the complaint. Therefore, she recommended the case be placed in proper form, placed on the docket, summonses be sent and the wheels of the civil justice machine be set into motion.

Ummm..

giphy8

It appears he re-wrote what the actual order said:

The First Amended Complaint in this case was filed under 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 the 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). Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).

This court is required to liberally construe pro se pleadings, Estelle v. Gamble, 429 U.S. at 97, holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980). The mandated liberal construction afforded 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, but a district court may not rewrite a pleading to “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which 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). Even under this less stringent standard, however, the pro se First Amended Complaint under review in this case is subject to partial summary dismissal.

In short: If the court, reading the complaint, determines it can reasonably discern in the pleading that a claim may exist and “could” prevail, then it can go forward.

It was clear in the original complaint that Schmalfeldt “could not” win Count I because he was trying for civil relief of cyber stalking and harassment using a criminal statute.  Yeah, ACME legal at its finest here.  So the magistrate recommended and the judge dismissed that count without prejudice.

Count I of Plaintiff’s Amended Complaint should be dismissed because it seeks civil relief for alleged cyberstalking or harassment. As this is a case within this court’s diversity jurisdiction and Plaintiff does not rest his claims on any federal law, the tort law of South Carolina governs Plaintiff’s claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Limbach Co., LLC v. Zurich Am. Ins. Co., 396 F.3d 358, 361 (4th Cir. 2005; McHugh v. Carlton, 369 F. Supp. 1271, 1279-80 (D.S.C. 1974). South Carolina has criminal statutes prohibiting stalking and harassment, S.C. Code §§ 16-3-1700, 16-3-1710, but those statutes do not provide a private right of civil action. See, e.g., Nelson v. Sci. Applications Int’l Corp., No. 2:11-cv-2928-PMD, 2013 WL 764664, at *10 (Feb. 7, 2013), report and recommendation adopted, 2013 WL 754834 (D.S.C. Feb. 27, 2013) (citing Ray v. Bowers, No. 08-cv-3512, 2009 WL 4893209, at * 5 (D.S.C. Dec.17, 2009) (claims of stalking and harassment dismissed because “§ 16-3-1700 is a criminal statute and does not provide a private civil remedy.”); White v. Stacher, No. 05-cv-1737, 2006 WL 1207857, at * 6 (D.S.C. May 1, 2006) (finding no civil action for stalking)). In light of the authority cited, Plaintiff fails to state a plausible claim for cyberstalking or harassment and Count I of his Amended Complaint should be dismissed.

Notice the phrase, “plausible claim”.

The magistrate did not say that the rest of the complaint met the burden of stating a claim on which relief can be granted. She doesn’t have to; that is decided by the judge during the process.  The case is just being allowed to move forward after she liberally construed he might have a plausible claim, even if he doesn’t know what he’s doing.

There are very good reasons why Mr. Nettles filed those motions.  And in trying to live up to “learning from his pro-se mistakes of the past”, he’s committed even more.

This is really going to be funny when the suit is dismissed.

6 thoughts on “Magistrate said what?

  1. Cabin Boy has never understood civil procedure to date, no reason to think he will now. But his bizarre assertion that the magistrate’s ex parte IFP review destroyed the defendants’ right to subsequently present a motion to dismiss is simply laughable.

    Liked by 5 people

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