United States District Court, W.D. Virginia, Charlottesville Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's application to
proceed in forma pauperis under 28 U.S.C. §
1915. (Dkt. 1). Plaintiff has moved to amend his complaint,
(dkt. 5), and has also moved for summary judgment, (dkt. 3).
The Court will grant Plaintiff's motion to proceed in
forma pauperis (dkt. 1), grant Plaintiff's motion to
amend his complaint (dkt. 5), deny Plaintiff's motion for
summary judgment (dkt. 3), and dismiss this action pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim on which relief may be granted.
MOTION TO AMEND
preliminary matter, the Court will grant Plaintiff's
“Motion to Amend Pro Se Service and Complaint.”
(Dkt. 5). The Defendant has not yet been served. According,
the Court grants Plaintiff's motion and reviews his
filings pursuant to 28 U.S.C. § 1915. See Fed.
R. Civ. P. 15(a). Therefore, the operative complaint is the
amended complaint. (dkt. 7). Defendant's amended
complaint references exhibits filed with the original
complaint but not with the amended complaint. For purposes of
the Court's § 1915 review, however, the Court will
consider the amended complaint and the exhibits to the
original complaint. See Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 166 (4th Cir. 2016) (noting that the
court may consider exhibits attached to a complaint in
assessing its sufficiency).
following summary of facts is based on the amended complaint
allegations. The instant action is the latest in a series of
suits brought by Plaintiff against Defendant arising from the
alleged actions of Defendant. The amended complaint is
difficult to understand, mixing references to previously
dismissed cases and State court proceedings.
amended complaint alleges Plaintiff lives in Charlottesville,
Virginia, and Defendant is a Virginia corporation with its
headquarters in Charlottesville. (Dkt. 7 at 2-3). Plaintiff
and Defendant entered into a service contract for seventeen
years beginning in 2002. The amended complaint alleges that
there was misrepresentation and fraudulent misappropriation
documented in exhibits to the complaint “and submitted
to emphasize action wielding the ‘findings and
declarations of purpose' in Federal law USC 1692 Title
15.” (Id. at 3 (emphasis omitted)). The
amended complaint also states that “the Court might
consider ‘Material Evidence' of False Claims and
Fraudulent Misappropriation that involves Medicare.”
(Id. at 6 (emphasis omitted)). In so doing, the
amended complaint cites a transcript from a State court
proceeding regarding events from 2012 and 2013 about billing
statements from Defendant to Plaintiff. (See dkt.
2-2 at 16). Plaintiff seeks $786, 000, 000.00 in damages.
(Id. at 13).
the latest in a string of complaints brought by Plaintiff
against Defendant seeking redress for some perceive fraud. In
United States of America, ex rel. Dinkins v. Region Ten
CSB, No. 3:17-cv-00034 (W.D. Va.), Plaintiff filed a
suit on behalf of the United States under the False Claims
Act, 31 U.S.C. § 3729, relating to his allegations of
“Medicare Up-coding.” The Court dismissed the
suit because a pro se litigant may not bring a
qui tam action on behalf of the United States.
Similarly, in Dinkins v. Region Ten CSB, No.
3:17-cv-00055 (W.D. Va.), the Court dismissed Plaintiff's
claim under 31 U.S.C. § 3802 (false claims) because the
statute did not create a private right of action. In
Dinkins v. Region Ten CSB, No. 3:18-cv-00001 (W.D.
Va.), the court dismissed the case for lack of jurisdiction
because none of the rules or statutes referenced in the
complaint were sufficient to support federal question
jurisdiction and diversity jurisdiction did not exist. Most
recently, in Dinkins v. Region Ten CSB, No.
3:18-cv-00001 (W.D. Va.), the Court dismissed the case as
STANDARD OF REVIEW
28 U.S.C. § 1915(e)(2), which governs in forma
pauperis proceedings, the court has a duty to screen
initial filings. Eriline Co. S.A. v. Johnson, 440
F.3d 648, 656-57 (4th Cir. 2006). The court must dismiss a
case at any time if the court determines that the action
“fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The
standards for dismissal pursuant to § 1915(e)(2)(B)(ii)
are the same as those for dismissal under Federal Rule of
Civil Procedure 12(b)(6). See De'Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Thus, to
survive dismissal for failure to state a claim, a complaint
must contain sufficient factual allegations “to raise a
right to relief above the speculative level” and
“to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007). Further, “a judge must accept as
true all of the factual allegations contained in the
complaint” and accord a liberal construction to a
pro se litigant's pleadings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
instant case, the Court considers Plaintiff's amended
complaint, (dkt. 7). The amended complaint is difficult to
understand, mixing references to previously dismissed cases
and State court proceedings involving Plaintiff and
Defendant. Plaintiff references numerous rules and statutes
in the amended complaint, many irrelevant to his claim or
merely mentioned without elaboration. Plaintiff appears to
assert a claim under the Fair Debt Collection Practices Act.
In his amended complaint, Plaintiff alleges:
Argument accumulating the charges which led to said
contradiction [in a State court proceeding], involve an
“Abuse of Assets” - including Misrepresentation
and Fraudulent Misappropriation - documented in electronic
and hardcopy Exhibits A, B, and C [setting out a contract and
invoices and adjusted invoices from 2012 to early 2013] and
submitted to emphasize action wielding the “finding and
declaration of purpose” in Federal law USC 1692 Title
(Dkt. 7 at 2 (emphases omitted)). The action cover sheet
states that the cause of action asserted is Medicare fraud,
although citing ...