Opinion
C. A. 3:23-2957-CMC-SVH
11-08-2023
Thurmond Guess, Sr., Plaintiff, v. Richland County Administrator Leonardo Brown; Darrell Jackson, Sr.; Rose Ann English; Alfred T. Guess; and Marjorie Guess, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Thurmond Guess, Sr. (“Plaintiff”), proceeding pro se, filed this complaint against Richland County Administrator Leonardo Brown, Darrell Jackson, Sr., Rose Ann English, Alfred T. Guess, and Marjorie Guess (“Defendants”). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends this matter be summarily dismissed.
I. Factual and Procedural Background
On August 4, 2023, the undersigned issued a Report recommending the complaint be summarily dismissed without prejudice and without issuance and service of process. [ECF No. 12]. Plaintiff filed objections and requested an opportunity to amend. [ECF No. 15]. On August 23, 2023, the Honorable Cameron McGowan Currie, United States District Judge, declined to adopt the Report and permitted Plaintiff an opportunity to amend. Plaintiff filed an amended complaintand this case was recommitted to the undersigned for consideration of the amended complaint.
The amended complaint was apparently inadvertently not filed on the docket, resulting in Judge Currie's dismissal of the case. However, Judge Currie reopened the case on October 25, 2023, after Plaintiff demonstrated the court had timely received the amended complaint.
Plaintiff alleges that over 30 years ago, on March 10, 1990, Jackson, Green, and English “made an unlawfully taken of the plaintiff property as an heir and given it to Richland County, which is illegal and unlawful and false right of way Deed to Richland County.” [ECF No. 1 at 1-2]. Plaintiff alleges his father was deceased when the easement was signed and filed. Id. He alleges Brown and Richland County refuse to “return the property back to the plaintiff and heirs.” Id. at 2. He claims “Alfred Guess and Marjorie Guess refuse to act and tell the plaintiff about this scam.” Id. He brings causes of action under 18 U.S.C. § 241 for conspiracy and for violations of his Fifth and Fourteenth Amendment rights.
II. Discussion
A. Standard of Review
Plaintiff filed this complaint 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. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a 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). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic 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, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
B. Analysis
1. Criminal Conspiracy Pursuant to 18 U.S.C. § 241
Plaintiff's cause of action pursuant to 18 U.S.C. § 241 should be summarily dismissed. Plaintiff seeks to bring a claim of conspiracy, but 18 U.S.C. § 241 is a criminal statute, not a civil one, and Plaintiff cannot sue under it. LaConey v. Strickland, No. 3:21-CV-2740-CMC, 2022 WL 970095, at *2 (D.S.C. Mar. 31, 2022), aff'd sub nom. LaConey v. Lott, No. 22-1479, 2022 WL 4463102 (4th Cir. Sept. 26, 2022). Plaintiff does not have a constitutional right to, or a judicially-cognizable interest in, the criminal prosecution or nonprosecution of another person or entity. See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981).
2. Constitutional Claims
Although Plaintiff indicates he is suing for violations of his Fifth and Fourteenth Amendment rights, all of the defendants except Brown are private citizens who are not responsible for due process, nor subject to liability under 42 U.S.C. § 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 (1982) (finding purely private conduct is not actionable under § 1983). Therefore, Plaintiff has failed to state a viable cause of action against Darrell Jackson, Sr., Rose Ann English, Alfred T. Guess, and Marjorie Guess.
Although he sues Brown as the Richland County Administrator, Plaintiff has not alleged that Brown denied him due process, as the easement was filed in 1990,well before Brown was in the position. The Supreme Court explains that “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see Slakan v. Porter, 737 F.2d 368, 372-74 (4th Cir. 1984) (finding officials may be held liable for the acts of their subordinates, if the official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as a result of deliberate indifference or tacit authorization).
The undersigned also notes that even if this court had jurisdiction over this case, it is subject to dismissal because it was filed outside of the statute of limitations.
Plaintiff alleges he informed Brown on February 15, 2022, at the “Richland County meeting” that “this Easement Right-of Way Deed was a scam.” [ECF No. 25 at 2 (errors in original)]. He further alleges “All of the defendants agree to be in on this conspiracy.” Id. However, this is insufficient to show Brown violated his constitutional rights. Therefore, Plaintiff also fails to state a cause of action against Brown.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Plaintiff's action be summarily dismissed without leave for further amendment.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).