Opinion
7:20-cv-04257-TLW-JDA
03-26-2021
Clarence Silvester Gregory, Plaintiff, v. R.J. Reynolds Tobacco Company, Inc.; Phillip Morris USA, Inc., Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Clarence Silvester Gregory (“Plaintiff”), proceeding pro se, brings this civil action against the above-named Defendants, seeking damages for certain injuries he has suffered and for his father's injuries and wrongful death all purportedly arising from Defendants' wrongful conduct. [Doc. 1.] Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the Broad River Correctional Institution (“Broad River”). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Having reviewed the pleadings filed in this case in accordance with applicable law, the undersigned concludes that certain claims asserted in this action should be summarily dismissed. However, Plaintiff's fraud claim filed on his own behalf will be served and remains pending at this time.
Plaintiff's original Complaint named additional Defendants-Lorillard Tobacco Company, Inc.; Liggett Group Inc.; The Council For Tobacco Research USA, Inc.; and The Tobacco Institute, Inc. [Doc. 1.] However, Plaintiff filed an Amended Complaint and is no longer pursuing claims against those Defendants. [Docs. 14; 14-1; 14-2.] As such, R.J. Reynolds Tobacco Company, Inc., and Phillip Morris USA, Inc., are the only Defendants remaining in this action.
Plaintiff purports to bring this action on behalf of himself and his deceased father, William Jessie Gregory, Jr. [Doc. 1.]
Although Plaintiff is a state prisoner, the Court does not review this action pursuant to 28 U.S.C. § 1915A because the Complaint does not appear to “seek[] redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Instead, as explained below, Plaintiff brings this action under state law against private entities.
BACKGROUND
Plaintiff commenced this action by filing a voluminous Complaint that consisted of 2, 053 typed pages. [Doc. 1.] Upon review, the Court concluded that the Complaint did not comply with Rule 8 of the Federal Rules of Civil Procedure. Consequently, the Court notified Plaintiff that his Complaint would be subject to summary dismissal pursuant to 28 U.S.C. § 1915 unless Plaintiff cured the deficiencies of his Complaint by filing an amended complaint that complied with Rule 8 of the Federal Rules of Civil Procedure. [Doc. 11.]
On January 11, 2021, Plaintiff filed a pleading on the standard court form [Doc. 14], a separate typed 37-page pleading against Defendant Phillip Morris USA, Inc. [Doc. 14-1], and a separate typed 30-page pleading against Defendant RJ Reynolds Tobacco Company, Inc. [Doc. 14-2]. The Court construes these three documents together as the Amended Complaint.
The Court provides only a summary of the allegations from the pleadings filed by Plaintiff; however, the Court has carefully reviewed each of Plaintiff's filings. This action arises from Plaintiff's claim that Defendants, who are corporations in the tobacco industry, committed intentional fraud and sold products resulting in his father's death. [Doc. 14 at 10.] Specifically, Plaintiff contends that Defendants caused the death of his father, William Jessie Gregory, Jr., who died of bronchogenic lung cancer, COPD, and squamous cell carcinoma cancer. [Id.] As a result of his father's death, Plaintiff has suffered the loss of parental guidance, loss of parental association, loss of parental, child, and family relationship, and suffers from respiratory lung infection. [Id.]
Plaintiff also alleges he has suffered personal injuries as a result of Defendants' wrongful conduct. Specifically, Plaintiff alleges he suffers from chronic sinusitis, chronic coughing, infection of his esophagus, infection of his larynx voice box, shortness of breath, wheezing and gasping, increased phlegm, worsened cold symptoms, scratchy throat, throat irritation, nightmares, and lack of rest and sleep, all resulting from second-hand smoke inhalation from Defendants' products, which they fraudulently claimed were safe. [Id.] Plaintiff also alleges he suffers nightmares because he witnessed his father's deteriorating physical condition and heard his father moaning and groaning in agony and pain, as a result of his suffering with cancer. [Id.]
For his relief, Plaintiff seeks a declaratory judgment, an award of money damages in the amount of $100,000,000 under the South Carolina Wrongful Death Statute, $100,000,000 under the South Carolina Survival Statute, $100,000,000 for his own injuries arising from exposure to second hand smoke, and punitive damages. [ Id. at 11-12; Doc. 14-1 at 34-36.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. Plaintiff files 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). A case is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Further, the Complaint is subject to review pursuant to the inherent authority of this Court to ensure that a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Mills v. Greenville Cty., 586 F.Supp.2d 480, 487 (D.S.C. 2008); Cornelius v. Howell, No. 3:06-cv-3387-MBS-BM, 2007 WL 397449, at *3 (D.S.C. Jan. 8, 2007) (noting that the payment of the full filing fee does not excuse the court from determining sua sponte that there is a valid basis for jurisdiction), Report and Recommendation adopted by 2007 WL 4952430 (D.S.C. Jan. 30, 2007).
Because Plaintiff is a pro se litigant, his 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, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the Court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but the Court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390 (4th Cir. 1990).
The Court must accept all well-pled allegations and review a complaint in a light most favorable to plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove her case as an evidentiary matter in her pleadings, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
Plaintiff appears to bring four claims in this action. First, Plaintiff asserts a claim for his father's wrongful death. Second, Plaintiff asserts a fraud claim on behalf of his deceased father, which appears to be brought under the South Carolina Survival Statute. Third, Plaintiff asserts a claim for deliberate indifference against Defendant RJ Reynolds on his own behalf. Fourth, Plaintiff asserts a fraud claim on his own behalf.
The Court will address each claim in turn below. In sum, Plaintiff's wrongful death claim, survival claim, and deliberate indifference claim are each subject to dismissal for the reasons below. Plaintiff's fraud claim on his own behalf, however, will be served and remains pending.
Wrongful Death and Survival Claims
“Under [South Carolina's] Survival Statute, causes of action relating to ‘any and all injuries to the person or to the personal property' shall survive to the personal representative of the decedent.” Hurd v. United States, 134 F.Supp.2d 745, 775 (D.S.C. 2001) (quoting S.C. Code Ann. § 15-5-90). “The general rule [is] that any cause of action which could have been brought by the deceased in his lifetime survives to his representative under the Survival Act.” Layne v. Int'l Bd. of Elec. Workers, 247 S.E.2d 346, 349 (S.C. 1978).
Additionally, South Carolina's wrongful death statute provides:
Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.S.C. Code Ann. § 15-51-10. Unlike with a survival statute claim, the damages recoverable for a claim under the wrongful death statute are not the decedent's damages, but those of the decedent's statutory beneficiaries. Boyle v. United States, 948 F.Supp.2d 577, 580 (D.S.C. 2012). Those recoverable damages include the beneficiaries' “(1) pecuniary loss, mental shock and suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship, and (6) deprivation of the use and comfort of the intestate's society.” Id.
Wrongful Death Claim
Plaintiff's wrongful death claim is subject to summary dismissal because Plaintiff lacks standing to assert that claim in this Court. “‘[F]ederal 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). Because 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). 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.”). As such, “standing is a threshold jurisdictional issue that must be determined first because ‘[w]ithout jurisdiction the court cannot proceed at all in any cause.'” Covenant Media of N.C., L.L.C. v. City of Monroe, 285 Fed.Appx. 30, 34 (4th Cir. 2008) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)). “A court does not have subject matter jurisdiction over an individual who does not have standing.” AtlantiGas Corp. v. Columbia Gas Transmission Corp., 210 Fed.Appx. 244, 247 (4th Cir. 2006).
Here, Plaintiff does not have standing to bring this claim. “The wrongful death statute provides a remedy for the spouse, child, parent, or heir of an injured party when a person commits a wrongful or negligent act causing the injured party's death.” Dickey v. Clarke Nursing Home, No. 2007-UP-344, 2007 WL 8327928, at *2 (S.C. Ct. App. June 29, 2007); see also S.C. Code Ann. §§ 15-51-10, 15-51-20. However, a wrongful death “action inheres only in the [personal representative], and the statutory beneficiaries cannot proceed in their individual capacity.” Dickey, 2007 WL 8327928, at *2. Under the statute, “the right of action for wrongful death is purely statutory and . . . may be brought only by the executor or administrator of such deceased person.” Glenn v. E.I. DuPont De Nemours & Co., 174 S.E.2d 155, 157 (S.C. 1970); see also S.C. Code Ann. § 15-51-20 (“Every [wrongful death] action shall be brought by or in the name of the executor or administrator of such person.”). Because only the estate's executor or administrator may bring a wrongful death action, a decedent's relative who is not the personal representative of the estate does not have standing to bring such a claim. Roberts v. Bodison, No. 2:14-cv-00750-MGL-MGB, 2015 WL 13215670, at *3-4 (D.S.C. Nov. 20, 2015), Report and Recommendation adopted by 2015 WL 9581756 (D.S.C. Dec. 30, 2015).
Plaintiff has not alleged facts showing that he is the executor or personal representative of his deceased father's estate. Because only the estate may file an action under the law, Plaintiff does not have standing to bring this claim. Accordingly, because Plaintiff lacks standing, the Court should dismiss this claim for lack of subject matter jurisdiction.
Additionally, even if Plaintiff were the personal representative of his deceased father's estate, he is not permitted to bring this claim in a pro se capacity. See Mink v. Wal-Mart Stores, Inc., No. 5:16-cv-01854, 2016 WL 11483984, at *7 (S.D. W.Va. July 14, 2016), Report and Recommendation adopted by 2016 WL 7106393 (S.D. W.Va. Dec. 5, 2016). A non-attorney individual may not represent an estate. See, e.g., Pridgen v. Andresen, 113 F.3d 391, 392-93 (2nd Cir. 1997). “While an individual's right to represent himself or herself pro se in federal court is protected by statute; see 28 U.S.C. § 1654; the right to litigate one's claims without an attorney ‘does not create a coordinate right to litigate for others.'” Bey v. Colon, No. 2:19-cv-941-BHH-BM, 2019 WL 3557920, at *3-4 (D.S.C. July 10, 2019) (quoting Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005)), Report and Recommendation adopted by 2019 WL 3547086 (D.S.C. Aug. 5, 2019). “Courts are in general agreement that where an estate has beneficiaries other than the personal representative (or administrator or executrix) the estate must be represented by counsel.” Id.; see also Witherspoon v. Jeffords Agency, Inc., 88 Fed.Appx. 659 (4th Cir. 2004). Accordingly, Plaintiff is not permitted to proceed with his wrongful death claim in this pro se action.
Survival Claim
Plaintiff's Amended Complaint also asserts a claim for fraud on his father's behalf. The undersigned construes Plaintiff's fraud claim filed on his father's behalf as a survival claim, as he appears to bring a claim under the survival statute, SC Code Ann. § 15-5-90, for his father's injuries arising from Defendants' purported fraudulent conduct. However, “[a]llegations of such fraud and deceit are exempted from the general survival statute and do not survive the plaintiff's death.” Ferguson v. Charleston Lincoln Mercury, Inc., 564 S.E.2d 94, 97-98 (S.C. 2002) (noting that, despite the broad language of the survival statute, SC Code Ann. § 15-5-90, “South Carolina case law has continued to recognize a common law exception regarding causes of action for fraud or deceit”); see also Mattison v. Palmetto State Life Ins. Co., 15 S.E.2d 117 (S.C. 1941) (explaining a cause of action for fraud did not survive the death of a person who was allegedly defrauded by an apparent cancellation of an insurance policy). Because “South Carolina . . . has long recognized several exceptions to the survivability of a claim, including an exception for fraud, ” Brailsford v. Brailsford, 669 S.E.2d 342, 345 (S.C. Ct. App. 2008), Plaintiff's fraud claim filed on behalf of his father is subject to dismissal as a matter of law as his father's fraud claim did not survive his death.
Further, even if Plaintiff would have had a potential claim for fraud under the survival statute, he lacks standing to bring such a claim against Defendants on behalf of his deceased father for the reasons already stated. Specifically, Plaintiff does not have standing to bring a survival action, which may be brought only by the personal representative of the estate of Plaintiff's deceased father. See Fisher v. Huckabee, 811 S.E.2d 739, 741 (S.C. 2018). Accordingly, Plaintiff's fraud claim filed on behalf of his father under the survival statute is subject to dismissal.
Deliberate Indifference Claim
Next, Plaintiff asserts a claim for deliberate indifference under the Eighth Amendment against Defendant RJ Reynolds. [Doc. 14-2 at 22-25.] However, Defendant is not a state actor and cannot be sued for violations of the Eighth Amendment. See Stepheney v. Publix's Food Store Pharmacys CEO, No. 1:11-cv-3402-MBS-SVH, 2012 WL 2502722, at *3 (D.S.C. Jan. 20, 2012) (“[P]urely private conduct such as that alleged in this case, no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under 42 U.S.C. § 1983.”), Report and Recommendation adopted by 2012 WL 2500368 (D.S.C. June 27, 2012). Accordingly, Plaintiff's deliberate indifference claim is subject to dismissal.
Fraud Claim
Plaintiff's Amended Complaint also asserts a claim for fraud on his own behalf. Plaintiff's fraud claim against Defendants asserted on his own behalf for injuries he alleges he suffered as a result of their unlawful conduct will be served. Plaintiff's fraud claim asserted on his own behalf is the only claim remaining in this action.
RECOMMENDATION
In light of the forgoing, it is recommended that the District Court dismiss Plaintiff's wrongful death claim, survival claim, and deliberate indifference claim. Plaintiff's fraud claim filed on his own behalf remains pending at this time.
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
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 300 East Washington Street, Room 239 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).