Opinion
C/A 8:21-cv-02432-DCC-KFM
09-10-2021
Beverly Gilchrist, Plaintiff, v. Charles Reel, Eydie Tillman, Jennifer Sumner, Odell Glover, Joseph Mosley, James McLaurin, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This is a civil action filed by a pro se and in forma pauperis non-prisoner plaintiff. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on August 4, 2021 (doc. 1). By order filed August 24, 2021, the plaintiff was given a specific time frame in which to bring her case into proper form for judicial screening (doc. 7). The plaintiff complied with the court's order, and the case is now in proper form for judicial screening. However, upon review of the plaintiff's complaint, the undersigned recommends it be dismissed.
LITIGATION HISTORY & ALLEGATIONS
Of note, this action is one of three filed by the plaintiff in this court regarding the subject property. The plaintiff's claims stem from a 2014 case filed by the plaintiff (then represented by counsel) in the Edgefield County Court of Common Pleas seeking the partition of real properties owned by the plaintiff and other heirs of J.L. Glover, Sr., and Martha Settles Glover as well as an equitable lien for real estate taxes the plaintiff purportedly paid for the subject properties (hereinafter “the partition action”). See Edgefield County Public Index, https://publicindex.sccourts.org/Edgefield/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2014-CP-19-00097) (last visited September 10, 2021). In that action, John F. Byrd, as special referee, concluded that the subject properties should be sold, denied the plaintiff's request for an equitable lien, and directed the attorneys to submit a proposed list of owners with their percentage of ownership for the purpose of the distribution of sales proceeds. Id. The plaintiff's attorney and Jennifer Sumner, an attorney representing another heir, submitted proposed lists for distribution of sales proceeds, and Mr. Byrd did not accept the proposed list submitted by the plaintiff's attorney. Id.
The plaintiff then filed a complaint in the Edgefield County Court of Common Pleas on February 28, 2020, asserting that Mr. Byrd and Ms. Sumner committed fraud and violated her Fifth and Fourteenth Amendment rights. See Gilchrist v. Byrd, Jr., et al., C/A No. 8:20-cv-01221-DCC-KFM, at doc. 1-1 pp. 5-7 (D.S.C.). The defendants in that action (Mr. Byrd and Ms. Sumner) removed the action to this court on March 30, 2020. Id. at doc. 1. On June 26, 2020, the undersigned issued a report and recommendation in that action, recommending that the defendants' motions to dismiss be treated as motions for summary judgment and granted. Id. at doc. 28. The Honorable Donald C. Coggins, Jr., United States District Judge, adopted the report and recommendation and granted summary judgment in favor of defendants Ms. Sumner and Mr. Byrd. Id. at doc. 33.
On August 20, 2021, the plaintiff (along with her husband) filed another action in this court seeking damages for destruction of the subject property against different defendants (than those named in the other two actions in this court). Gilchrist v. Rowland, et al., C/A No. 8:21-cv-02700-DCC-KFM, at doc. 1 (D.S.C.). In that case, a proper form order was issued on September 7, 2021, instructing the plaintiffs to provide certain documents to bring their case into proper form. Id. at doc. 7. That case remains pending.
In the instant action, the plaintiff alleges diversity and federal question jurisdiction for violations of her civil rights and liberties as well as fraud (doc. 1). She alleges that an $81,500.00 lis pendens worth $58,000.00 that was protecting her deed was removed by fraud (id. at 7). She further alleges that she was supposed to receive money from the purchase of the subject properties, but that instead the record indicates an eviction on August 5, 2021 (id.). The plaintiff also alleges that she has resided at the property for 25 years and that it should belong to her free and clear (id.). For relief, the plaintiff seeks money damages (id.).
APPLICABLE LAW & ANALYSIS
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a Defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
The plaintiff asserts that this court has jurisdiction over this action based upon Federal Question and Diversity jurisdiction (doc. 1). As set forth in more detail below, this matter is barred by claim preclusion, the plaintiff has failed to assert a cognizable federal claim, the plaintiff has not alleged diversity jurisdiction, and this action is frivolous; thus, the undersigned recommends that it be dismissed.
The plaintiff's complaint is barred by claim preclusion (res judicata)
In the instant matter, the plaintiff seeks to re-litigate claims that have already been adjudicated and decided adversely to her by this Court. Under the doctrine of claim preclusion-or res judicata-a final judgment on the merits of an action bars the parties from re-litigating the issues that were or could have been raised in the prior action. See Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004). In order for res judicata to apply, there must have been (1) a final judgment on the merits in a prior suit; (2) the identity of the cause of action in both suits; and (3) the same parties or their privies in the two suits. Id. at 354-55 (citing Nash Cty. Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)); see Orca Yachts L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002) (noting that claim preclusion applies when there has been a valid and final judgment-even if the matter was not actually litigated (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996)). In evaluating whether the same cause of action is brought in both suits, the court ascertains whether the claim in the new litigation “arises out of the same transaction or series of transactions as the claim resolved by the prior judgment.” Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (internal quotation marks omitted) (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). Here, the plaintiff contends that the defendants, via fraud, removed a lis pendens that was protecting her interest in the subject property (doc. 1 at 7). The plaintiff further contends that she was not provided proceeds from the sale of the property and that the record indicates that she was evicted on August 5, 2021 (id.). The plaintiff has already brought claims regarding fraud in relation to the subject property and the partition action, although she has named additional parties in this action. See Gilchrist v. Byrd, Jr., et al., C/A No. 8:20-cv-01221-DCC-KFM, at docs. 28; 33. As outlined above, in the prior action, the plaintiff's claims were adjudicated on the merits and summary judgment was granted in favor of defendants Mr. Byrd and Ms. Sumner. Id. at docs. 28; 33. Accordingly, the plaintiff's claims against these defendants - encompassing the same allegations of fraud as in the prior action - are barred by res judicata.
The Complaint is Subject to Summary Dismissal
Even if the instant action were not barred by res judicata, the plaintiff's claims would still be subject to summary dismissal, as outlined in more detail below.
Subject Matter Jurisdiction
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
There are two types of federal jurisdiction: federal question jurisdiction and subject matter jurisdiction. Federal question jurisdiction arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Diversity jurisdiction, on the other hand, is conferred upon the Court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). Here, the plaintiff alleges federal question jurisdiction based upon “civil rights” violations as well as diversity jurisdiction (doc. 1 at 4). Liberally Construed, the plaintiff may be attempting to bring an action pursuant to 42 U.S.C. § 1983. To the extent the plaintiff's complaint can be construed as raising such claims, they are addressed, infra.
With respect to diversity jurisdiction, the plaintiff's allegations are insufficient to confer diversity jurisdiction in this matter. As briefly noted above, diversity jurisdiction is conferred upon the Court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). “With the exception of certain class actions, Section 1332 requires complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant.” Central W.Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) (footnote omitted). Citizenship for purposes of diversity jurisdiction “depends on the citizenship of the parties at the time suit is filed.” Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). An individual is a citizen of the state in which he or she is domiciled. Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008). Here, the plaintiff is a resident of South Carolina (doc. 1 at 3). All of the defendants are likewise residents of South Carolina (id. at 3-4). As such, there is not diversity jurisdiction in this case.
Section 1983 Claims
42 U.S.C. § 1983, “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). To the extent the plaintiff's complaint can be construed as asserting a claim for civil rights violations pursuant to 42 U.S.C. § 1983, her actions would be subject to summary dismissal because she has made no personal allegations of wrongdoing against the defendants, the defendants have judicial or quasi-judicial immunity, the defendants are not state actors, and this action is frivolous in nature.
No Personal Allegations
The defendants do not appear in the plaintiff's complaint beyond the caption and being named as defendants (see doc. 1). Indeed, it is unclear in what capacity the defendants were involved in the alleged fraud with the partition action. Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995); see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal involvement”). As such, the complaint fails to state a claim on which relief may be granted against the defendants, and this action should be dismissed.
Judicial Immunity
As noted above, the plaintiff alleges that a lis pendens was improperly removed from her property (doc. 1). However, defendants Eydie Tillman, Judge Mosley, Judge McLaurin, and Charles Reel have judicial immunity. It is well-settled that judges have absolute immunity from a claim for damages arising out of their judicial actions unless they acted in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-64 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Similarly, court clerks enjoy derivative absolute judicial immunity when they act in obedience to a judicial order or under the court's direction. See McCray v. Maryland, 456 F.2d 1, 5 (4th Cir. 1972). Whether an act is judicial or non-judicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13. Absolute immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The allegations as to the defendants - to the extent allegations can be construed - involve the defendants acting in their judicial capacities in filing and enforcing orders of the court; as such, judicial immunity squarely applies and they should be dismissed. Likewise, the plaintiff's allegations against Mr. Reel involve his role as the clerk of court under the direction of judicial officers; thus, Mr. Reel also has immunity and should be dismissed. See Holcomb v. Greenville Cnty. Clerk of Court, C/A No. 6:17-cv-02001-MGL-SVH, 2017 WL 4023128 (D.S.C. Aug. 23, 2017), Report and Recommendation adopted by 2017 WL 4012389 (D.S.C. Sept. 12, 2017) (noting that immunity was extended to court support personnel because “disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts” (internal citation and quotation marks omitted)). As such, these defendants are entitled to summary dismissal.
The plaintiff describes Eydie Tillman as “Attorney (Referee Judge)” (doc. 1 at 3). To the extent Eydie Tillman is sued as an attorney (and not for actions as a judge), he would be subject to summary dismissal because he is not a state actor, as outlined with respect to Ms. Sumner and Mr. Glover, infra.
Not a State Actor
Defendants Jennifer Sumner and Odell Glover are subject to summary dismissal because they were not acting under color of state law. It is well-settled that “[a]nyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). However, private conduct, no matter how discriminatory or wrongful, is not covered under § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-51 (1999). In distinguishing between state action and private action,
The judicial obligation is not only to preserv[e] an area of individual freedom by limiting the reach of federal law and avoi[d] the imposition of responsibility on a State for conduct it could not control, but also to assure that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (internal quotation marks and citations omitted). State action may be found to exist “if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotations and citations omitted).
The United States Court of Appeals for the Fourth Circuit has identified several contexts in which private action may be found to constitute state action, such as “when the state has coerced a private actor to commit an act that would be unconstitutional if done by the state”; “when the state has delegated a traditionally and exclusively public function to a private actor”; “when the state has sought to evade a clear constitutional duty through delegation to a private actor”; or “when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen.” Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993). The critical inquiry in each case is whether the private actor's conduct was fairly attributable to the state. Mentavlos v. Anderson, 249 F.3d 301, 313 (4th Cir. 2001). “[T]he ultimate resolution of whether an actor was a state actor . . . is a question of law for the court.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344 n.7 (4th Cir. 2000).
Here, the plaintiff's complaint “includes no facts that establish such a ‘close nexus' between these defendants' challenged actions and the state” such that their actions “may be ‘fairly treated' as those of the state itself.” See Perry v. Chattem, Inc., C/A No. 7:08-cv-00106, 2008 WL 983428, at *4 (W.D. Va. Apr. 9, 2008). For example, Ms. Sumner was acting as an attorney for a private individual in the partition action (doc. 1 at 7). It is unclear Mr. Odell's role in the partition action (and subsequent fraud); however, there is no indication that he was a state actor. Further, to the extent the plaintiff's allegations can be construed as asserting a conspiracy between these defendants and state actors (who have judicial immunity, as outlined above), even liberally construed, fails to establish a ‘close nexus' whereby the defendants' alleged private conduct is considered action by the state. In light of the foregoing, these defendants are subject to summary dismissal because they are not state actors.
Frivolous
In addition to the foregoing, the plaintiff's complaint is also subject to summary dismissal because it is frivolous. Although 28 U.S.C. § 1915 permits an indigent litigant to proceed in forma pauperis, the court is to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). Here, the plaintiff's vague and nonsensical allegations, as outlined above, do not raise a cognizable federal claim. It is well-settled that the court has the authority to dismiss claims that are obviously “fantastic” or “delusional.” Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994); Raiford v. FBI, C/A No. 1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), Report and Recommendation adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the irrational or the wholly incredible”). In reviewing a complaint for frivolousness or malice, the court looks to see whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Harley v. United States, 349 F.Supp.2d 980, 981 (M.D. N.C. 2004) (citing Neitzke v. Williams, 490 U.S. 319 (1989)). The Court must accept all well-pled allegations and review the Complaint in a light most favorable to plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Here, even reviewing it in a light most favorable to the plaintiff, the plaintiff's complaint is comprised of factual allegations that are not credible, and which fail to state a claim for relief. For example, the plaintiff's conclusory claims that the defendants have conspired with others involved in the partition action to defraud the plaintiff and take her property, standing alone, are clearly delusional and frivolous, and they fail to show any arguable basis in fact or law. See Neal v. Duke Energy, No. 6:11-cv-1420-HFF-KFM, 2011 WL 5083181, at *4 (D.S.C. June 30, 2011), Report and Recommendation adopted by 2011 WL 5082193 (D.S.C. Oct. 26, 2011) (dismissing action upon finding plaintiff's factual allegations were frivolous, fanciful, and delusional where plaintiff claimed defendants clandestinely placed a GPS device in her car while it was in the shop for repairs and that she was being stalked by the defendants, noting the allegations were “made without any viable factual supporting allegations and appears to be the product of paranoid fantasy”); Feurtado v. McNair, No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). As such, in light of the foregoing, the undersigned also recommends that this action be dismissed as frivolous.
Supplemental Jurisdiction
To the extent the plaintiff asserts fraud as a state law claim in this matter, the court should abstain from exercising jurisdiction over such claims. Such claims can be considered by this court through the exercise of “supplemental jurisdiction, ” which allows federal courts to hear and decide state law claims along with federal claims. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 387 (1998); 28 U.S.C. § 1367. However, federal courts are permitted to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” Here, as noted, the plaintiff's federal claims are subject to summary dismissal for several reasons. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending her complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Com. Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). As noted in more detail above, this action is subject to dismissal for several reasons, including frivolousness; thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend her complaint (as the frivolity of the action cannot be cured via amending the complaint). Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. It is further recommended that the United States District Judge assigned to this case consider the entry of sanctions against the plaintiff in the future should the plaintiff continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).