Opinion
C/A No. 3:19-400-CMC-PJG
05-09-2019
Thurmond R. Guess, Sr., Plaintiff, v. Sharon Y. Hipps; State Farm Insurance; H. Ranald Stanley; John Austin Hood; Gallivant White Boyd; Johnston Cox; William P.A. Buyck, III; GEICO Indemnity Co.; Elliot B. Daniels; South Carolina Department of Motor Vehicles; Shirley H. Rivers, Defendants.
REPORT AND RECOMMENDATION
The plaintiff, Thurmond R. Guess, Sr., proceeding pro se, brings this civil rights and personal injury action pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). By order dated April 2, 2019, the court provided Plaintiff the opportunity to file an amended complaint to correct deficiencies identified by the court that would warrant summary dismissal of the Complaint pursuant to 28 U.S.C. § 1915. (ECF No. 11.) Plaintiff filed an Amended Complaint on April 9, 2019. (ECF No. 14.) Having reviewed the Amended Complaint in accordance with applicable law, the court concludes the Amended Complaint still fails to state a viable claim and should be summarily dismissed with prejudice and without the issuance of service of process.
I. Factual and Procedural Background
Plaintiff indicates that on February 17, 2016, he and Defendant Hipps were involved in a motor vehicle collision in Columbia, South Carolina, in which Plaintiff was charged by city police for following too closely. (Am. Compl., ECF No. 14 at 2; ECF No. 14-1 at 1-3.) Plaintiff's was ultimately not convicted of the charge, but Hipps filed a lawsuit against Plaintiff in the Richland County Court of Common Pleas. (Id., ECF No. 14-1 at 1-4.) In the civil suit, Plaintiff demanded a jury trial and counterclaimed. (Id., ECF No. 1 at 2.) However, Plaintiff claims that the insurance companies, lawyers, and law firms involved in the suit—State Farm Insurance; H. Ranald Stanley; John Austin Hood; Gallivant White Boyd; Johnston Cox; William P.A. Buyck, III; GEICO Indemnity Co.; and Elliot B. Daniels—settled the lawsuit, including Plaintiff's counterclaims, against Plaintiff's wishes. (Id.; ECF No. 14-1 at 10-18.)
At Plaintiff's request, the lawyers withdrew the stipulation of dismissal as to Plaintiff's counterclaims. (Id.; ECF No. 14-1 at 21.) Hipps moved for summary judgment, and the court granted the motion. (Id.) Based on the foregoing, Plaintiff claims, pursuant to 42 U.S.C. § 1983, that these defendants violated Plaintiff's Seventh Amendment right to a jury trial. (Id. at 2-3.) Plaintiff also claims these defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., by not giving Plaintiff notice of court hearings and dates, and by not telling Plaintiff about a settlement with Hipps. (Id. at 4.)
Plaintiff separately claims that State Farm Insurance regularly denies insurance claims of racial minorities. (Id. at 3.)
Additionally, Plaintiff raises a claim pursuant to 42 U.S.C. § 1983 for a violation of the Fifth Amendment against the South Carolina Department of Motor Vehicles ("SCDMV") and Shirley H. Rivers for their failure to remove and clear Plaintiff's driving record after he was found "not guilty" as to his traffic citation arising out of the accident. (Id. at 4.) Plaintiff also raises a state law claim of intentional infliction of emotional distress against all of the defendants. (Id. at 5.) Plaintiff seeks actual damages. (Id.)
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint. The Amended Complaint has been filed pursuant to 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. This statute allows a district court to dismiss the case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
The court finds that despite having availed himself of the opportunity to cure the deficiencies previously identified by the court, Plaintiff's Amended Complaint should nonetheless be summarily dismissed for the reasons stated below. See Martin v. Duffy, 858 F.3d 239, 247-48 (4th Cir. 2017) (finding the plaintiff's "repeated, ineffective attempts an amendment" suggest further amendment would be futile).
1. Claims Pursuant to 42 U.S.C. § 1983
Plaintiff raises claims pursuant to 42 U.S.C. § 1983, which " '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)). To state a claim under § 1983, a plaintiff must allege: (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).
First, Plaintiff claims that Hipps, the insurance companies, lawyers, and law firms violated Plaintiff's Seventh Amendment right to a jury trial in a civil case. However, private parties and their counsel in a civil lawsuit are not state actors amenable to suit pursuant to § 1983. "To constitute state action, 'the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,' and 'the party charged with the deprivation must be a person who may fairly be said to be a state actor." West, 487 U.S. at 49 (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 n.18 (1982)); see also Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 341 (4th Cir. 2000) (discussing the different tests used to identify when private parties can be considered state actors in civil rights suits). Here, Plaintiff provides no facts that would plausibly show any connection between these defendants and the state, such that their conduct in a civil suit could be fairly attributable to the state. Cf. Abulkhair v. Liberty Mut. Ins. Co., 441 F. App'x 927, 931 (3d Cir. 2011) (finding the plaintiff's allegations of misconduct by his insurer and its adjusters arising out of a motor vehicle accident were not fairly attributable to the state in his suit for damages pursuant to § 1983); Limehouse v. Delaware, 144 F. App'x 921, 923 (3d Cir. 2005) (finding a private attorney's representation of state defendants in a civil proceeding did not constitute state action). Accordingly, Plaintiff fails to state a § 1983 claim against these defendants in the Amended Complaint.
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." U.S. Const. amend VII.
Also, Plaintiff's claim of racial discrimination against State Farm Insurance is too vague and conclusory to state a claim upon which relief can be granted. See Iqbal, 556 U.S. at 678 (stating Federal Rule of Civil Procedure 8 does not require detailed factual allegations, but it requires more than a plain accusation that the defendant unlawfully harmed the plaintiff, devoid of factual support).
Second, Plaintiff claims SCDMV and Rivers violated Plaintiff's rights under the Fifth Amendment, which the court construes as a claim that they violated Plaintiff's right to due process. However, SCDMV is immune from Plaintiff's claim for damages. The Eleventh Amendment bars suits by citizens against non-consenting states brought either in state or federal court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Such immunity extends to arms of the state, including a state's agencies, instrumentalities and employees. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). While sovereign immunity does not bar suit where a state has given consent to be sued, or where Congress abrogates the sovereign immunity of a state, neither of those exceptions applies in the instant case. Therefore, SCDMV is immune from Plaintiff's claim for damages pursuant to § 1983.
Such a claim would have to be brought under the Fourteenth Amendment's Due Process Clause to the extent Plaintiff seeks relief from state actors. U.S. Const. amend. XIV (providing that no state shall "deprive any person of life, liberty, or property, without due process of law"). The Due Process Clause provides two areas of constitutional protection—procedural due process and substantive due process. "To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law." Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). On the other hand, to state a substantive due process claim, a plaintiff must plausibly allege "(1) that [he] had property or a property interest; (2) that the state deprived [him] of this property or property interest; and (3) that the state's action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency." Tri Cty. Paving, Inc. v. Ashe Cty., 281 F.3d 430, 440 (4th Cir. 2002).
Congress has not abrogated the states' sovereign immunity under § 1983, see Quern v. Jordan, 440 U. S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
And as to Rivers, Plaintiff fails to state a plausible claim for relief. See Fed. R. Civ. P. 8 (requiring that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief"); Iqbal, 556 U.S. at 678. Here, Plaintiff merely alleges that Rivers failed to remove a traffic ticket from Plaintiff's driving record. But this fact alone does not state a plausible claim that Plaintiff was deprived of due process. Plaintiff fails to explain Rivers's role with SCDMV or how she was involved reviewing Plaintiff's driving record. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through her own individual actions, violated the Constitution); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) ("In order for an individual to be liable under § 1983, it must be 'affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.' ") (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). Accordingly, Plaintiff fails to state a § 1983 claim against Rivers in the Amended Complaint.
2. ADA Claim
Plaintiff purports to raise an ADA claim against the defendant insurance companies, lawyers, and law firms, but Plaintiff fails to provide any facts that plausibly show he is disabled, or that he was denied access to a public program or service, see 42 U.S.C. § 12132, or a facility of public accommodation, see 42 U.S.C. § 12182. Accordingly, Plaintiff fails to state an ADA claim upon which relief can be granted against these defendants in the Amended Complaint.
3. Intentional Infliction of Emotional Distress
Plaintiff also raises a state law tort claim for intentional infliction of emotional distress against all of the defendants. "To recover for outrage—otherwise known as intentional infliction of emotional distress—a plaintiff must establish the following: (1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his conduct; (2) the conduct was so 'extreme and outrageous' so as to exceed 'all possible bounds of decency' and must be regarded as 'atrocious, and utterly intolerable in a civilized community;' (3) the actions of the defendant caused plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was 'severe' such that 'no reasonable man could be expected to endure it.' " Bass v. S.C. Dep't of Soc. Servs., 780 S.E.2d 252, 260-61 (S.C. 2015) (quoting Argoe v. Three Rivers Behavioral Health, L.L.C., 710 S.E.2d 67, 74 (S.C. 2011)). But here, Plaintiff fails to provide any facts that would show that he suffered severe emotional distress, or that such distress was caused by the defendants. Consequently, Plaintiff fails to state a claim for intentional infliction of emotional distress in the Amended Complaint.
III. Conclusion
Based on the foregoing, the court recommends that the Amended Complaint be summarily dismissed with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)). May 9, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
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
901 Richland Street
Columbia, South Carolina 29201
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).