Opinion
4:22-318-TLW-TER
04-14-2022
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Charles M. Dickens,individually, Cathy Hazelwood, individually, Kathryn Crews, individually, Molly Spearman, Henry McMaster, Co Foster, individually, Daniel Huckso, individually, Richard Roundtree, Wendy Edwards, individually, Jamie Wilson, Jr., Selena Blakenship, Brian Kemp, Xernona Thomas, Makeba Clark, individually, Jessica Norris, individually, Christopher N. Williamson, Jo-Nathan Nell, Mark Keel, Scott Wilkerson, Tommy Crosby, Regina Crooley, Kevin A. Shwedo, Robert G. Woods, IV, Kevin Thomas, J. Ron Munnerlyn, Larry McNeill, Patrick Dean Blanchard, Officer Sutton, Odie Donald, II, Hardie Davis, Jr., Victor Reynolds, John Melvin, Morcease Beasley, Thomas Y. Trawick, Jr., Daniel Postell, Lakeshia Jordan, Mark Sizemore, Dexter Fisher, Christopher A. Wray, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This 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. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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 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. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon, 574 F.2d at1151. Even under this less stringent standard, however, 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 a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a [court] should view such pro se complaints does not transform the court into an advocate.”).
DISCUSSION
On February 15, 2022, Plaintiff was informed via court order of deficiencies in her Complaint that would subject her Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 14). Plaintiff availed herself of the opportunity and filed an Amended Complaint, consisting of over 100 pages (ECF No. 23); however, some deficiencies persist, and the action is subject to partial summary dismissal.
Plaintiff alleges she brings this action jurisdictionally only under the federal question doctrine pursuant to 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments, the Privacy Act of 1974, the Fair Credit Reporting Act, 18 U.S.C. § 241, and 18 U.S.C. 242. (ECF No. 23 at 7). Plaintiff categorizes the causes of actions as: § 1983 against all defendants (ECF No. 23 at 38); 18 U.S.C. § 241 conspiracy against rights(ECF No. 23 at 39); 18 U.S.C. § 242, deprivation of rights (ECF No. 23 at 45); negligence/negligent hiring and retention (ECF No. 23 at 55); “falsely accused of a felony” by Georgia law enforcement (ECF No. 23 at 57); abuse of power (ECF No. 23 at 59); libel/slander/defamation (ECF No. 23 at 64); intentional infliction of emotional distress(ECF No. 23 at 65); and respondeat superior (ECF No. 23 at 72).
Respondeat superior is a legal doctrine not a cause of action, which Plaintiff had been informed in a prior action. Reaves v. Marion Cty. Sch. Dist., No. CV 4:19-2922-TLW-SVH, 2019 WL 5448373, at *3 (D.S.C. Oct. 24, 2019).
Plaintiff's Amended Complaint is voluminous at over 100 pages and at times repetitive. (ECF No. 23). Plaintiff's allegations appear to be capable of separation into three events and three sets of defendants(Georgia law enforcement, South Carolina law enforcement, and educational defendants).
Plaintiff alleges in November 2020, Defendant Foster and Blanchard (employed by a Georgia county sheriff's office) took a report over the phone allegedly from Plaintiff's daughter that Plaintiff used her daughter's identity to put a light bill in Plaintiff's name. The report alleges the daughter had not given permission and was not staying at that location. “Siobhan was given a case number and advised of how to obtain a copy of the report. Siobhan was also explained the warrant procedures.” (ECF No. 23-1 at 3). Plaintiff alleges in December 2020, Defendants Foster and Sutton reported incorrectly to the electronic system that there was a felony warrant for fraud.(ECF No. 23 at 2). Plaintiff's remaining allegations appear to stem from this allegedly erroneous information.
Personal jurisdiction is an affirmative waivable defense; some courts have found it is generally inappropriate to sua sponte address personal jurisdiction. Trudell Med. Int'l v. D R Burton Healthcare LLC, No. 4:18-CV-9-H-KS, 2020 WL 4372135, at *2 (E.D. N.C. Mar. 30, 2020). Other courts have found it is permissible to address sua sponte.” Ospina v. Baraya, 2021 WL 6072606, at *1 (W.D. N.C. Dec. 23, 2021); Hall v. Herman, 896 F.Supp. 588, 590 (N.D.W.Va.1995). Out of an abundance of caution, personal jurisdiction will not be addressed here sua sponte.
A review of public records does not reveal any Georgia arrest, warrant, or indictment during this time period.
In November 2021, Plaintiff alleges she was pulled over for a minor traffic violation in South Carolina by Defendant Dickens, a SCHP officer. (ECF No. 23 at 6). Public records indicate this as well. Plaintiff alleges she was taken to a county detention center due to the record of a Georgia warrant and placed on a hold for the warrant to be faxed and for Georgia to extradite Plaintiff. (ECF No. 23 at 6-7). However, Plaintiff alleges Georgia never faxed the warrant and never came to exercise their hold; thus, Plaintiff was released. (ECF No. 23 at 7).
Third, Plaintiff's applications for Georgia teaching jobs with two schools were flagged due to the Georgia warrant appearing on her criminal background check, as well as a hold placed on her application for a teacher certification in South Carolina. In August 2021, Plaintiff was directed that she must appear before the South Carolina Board of Education Certification Review Committee as to her teacher certification application. Plaintiff alleges her certification was placed on hold. (ECF No. 23 at 51). Plaintiff alleges she made multiple attempts to prompt various defendants to verify the alleged “warrant,” insisting it was just a case report that had been erroneously reported to the FBI database. (ECF No. 23 at 43).
False Arrest and Malicious Prosecution
Plaintiff has made sufficient allegations as to malicious prosecution and/or false arrest as to Defendants Foster, Blanchard, Huckso, and Sutton from the Richmond County Sheriff Office in Georgia. Plaintiff alleges Foster took the report that was later erroneously entered as a warrant. (ECF No. 23 at 3, 10, 13-15). Plaintiff alleges Blanchard reviewed the report. (ECF No. 23 at 1819, 42). Plaintiff alleges due to running close in time to the criminal statute of limitations, Defendants Foster, Huckso, and Blanchard upgraded the charge or “falsely reported” a case report as a felony warrant. (ECF No. 23 at 49, 63, 57-58). Plaintiff alleges Defendant Huckso was the investigator of the case report about the power bill and the report did not specify whether there was any evidence of the allegations. (ECF No. 23 at 19, 47-48). Plaintiff alleges Defendant Sutton is in charge of the Georgia records and spoke with Plaintiff in July 2021 where Sutton allegedly told Plaintiff that the case report was “reported as a felony warrant to force Plaintiff to come in to talk to the RCSO about a matter unknown to Plaintiff.” (ECF No. 23 at 22). At this procedural stage, this same day issuance of service has been authorized on Defendants Foster, Blanchard, Huckso, and Sutton.
Plaintiff alleges Defendant Wilkerson, Director of IT of SLED, and Defendant Crosby, Director of Information Services of SLED, are “data stewards” and are responsible for the record entry into the SLED database. (ECF No. 23 at 6). Plaintiff alleges Wilkerson and Crosby were responsible for information distribution and receipt of out of state warrants to be entered into the SLED criminal database. (ECF No. 23 at 9). Plaintiff alleges Defendant Wilkerson and Crosby populated the case report without a warrant into the database, eventually resulting in Plaintiff's detainment in a South Carolina detention center on a hold based on the information pulling up on Defendant Dickens(the officer of the traffic stop) screen from the database. (ECF No. 23 at 17). At this procedural stage, it is unclear if Plaintiff has stated a plausible false arrest or malicious prosecution claim as to Defendant Wilkerson's involvement in Plaintiff's eventual arrest/hold and detainment. Out of an abundance of caution, issuance of service has been authorized this same day on Defendant Wilkerson.
Defendant Crosby is dismissed without prejudice as Plaintiff filed a Notice of Voluntary Dismissal on March 30, 2022. (ECF No. 40).
Liberally construed, Plaintiff alleges Defendant McNeil, interim sheriff, and Warden Thomas falsely imprisoned her in South Carolina waiting for law enforcement from Georgia to come pick her up where there was never a warrant sent or extradition procedures initiated. (ECF No. 23 at 6-7, 53). To the extent Plaintiff makes other allegations that McNeil is responsible for the conduct of Defendant Thomas or other employees, such claim is subject to summary dismissal as to supervisory liability. (ECF No. 23 at 13, 35). To the extent Plaintiff alleges Defendant Kevin Thomas is responsible for all detention center personnel and matters, such claim is subject to summary dismissal as to supervisory liability. (ECF No. 23 at 36) (see below discussion on supervisory liability). At this procedural stage, it is unclear if Plaintiff has stated a plausible false arrest/imprisonment or malicious prosecution claim as to Defendant McNeil and Kevin Thomas as to Plaintiff's detainment in South Carolina. Out of an abundance of caution, service has been authorized this same day on Defendant McNeil and Kevin Thomas.
Plaintiff alleges that Defendant Crooley, Director of IT for SCHP/SCDPS was “responsible for reporting the felony warrant” that led to Plaintiff's arrest by Defendant Dickens and was responsible for the accuracy and validity of the data. (ECF No. 23 at 10, 12, 52). Out of an abundance of caution at this procedural stage, service has been authorized this same day on Defendant Crooley.
On November 19, 2021, Defendant Dickens, an officer with the South Carolina Highway Patrol, allegedly pulled Plaintiff over for a traffic violation and then transported Plaintiff to the detention center due to the Georgia warrant displaying in the electronic database (ECF No. 23 at 6, 8). Out of an abundance of caution at this procedural stage, service has been authorized this same day on Defendant Dickens.
A complaint fails to state a claim upon which relief may be granted if it does not “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). The court need not blindly accept legal conclusions, or “unwarranted inferences, unreasonable conclusions, or arguments” made by Plaintiff. Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006). It is within this context of precedent that the court reviews Plaintiff's Amended Complaint pursuant to the statutory duty to screen Plaintiff's Amended Complaint and recommends the remaining defendants be dismissed. See 28 U.S.C. § 1915.
Summary Dismissal of Defendants Regarding Supervisory Liability
A plaintiff must affirmatively show that a defendant acted personally in the deprivation of her constitutional rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). When a complaint contains no personal allegations against a defendant, that defendant is properly dismissed. See Cox v. U.S. Attorney Gen, 2012 WL 1570110 at *2 (D.S.C. April 10, 2012); Howard v. Childs, 2012 WL 527596 at *4 (D.S.C. Jan. 19, 2012). Because the instant pleadings provide no specific factual allegations as to how the following Defendants were personally involved in violating Plaintiff's constitutional rights, Plaintiff fails to establish personal liability against these defendants.
Generally, vicarious liability or respondeat superior is not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. See Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor liability under § 1983:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices,”; and
(3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984). Plaintiff has not pleaded facts to support the supervisory liability exception. Thus, the following Defendants are subject to summary dismissal based on lack of personal involvement or allegations to meet the supervisory liability exception.
Plaintiff alleges Defendant Nell is the Commander for the South Carolina Highway Patrol and is responsible for Dickens' conduct and other personnel obeying the laws. (ECF No. 23 at 89). Plaintiff alleges Defendant Williamson is “the Commander for the South Carolina Highway Patrol and was responsible for the actions of” Dickens and Nell. (ECF No. 23 at 8). Plaintiff fails to state a claim upon which relief can be granted as to Defendants Williamson and Nell.
Plaintiff alleges Defendant Keel, Director of SLED, is “responsible” for conduct of SLED defendants and all SLED employees. (ECF No. 23 at 9). Plaintiff alleges she wrote Keel a letter and he never responded. (ECF No. 23 at 66). Plaintiff alleges no actionable conduct by Keel. Plaintiff fails to state a claim upon which relief can be granted as to Keel.
Plaintiff alleges Defendant Shwedo, Executive Director of SCDMV, is responsible for all SCDMV matters and personnel. (ECF No. 23 at 10). Plaintiff fails to state a claim upon which relief can be granted as to Shwedo.
Plaintiff alleges Defendant Munnerlyn is the South Carolina county administrator in the county where she was held and arrested, and he is “responsible” for all county matters and employees. (ECF No. 23 at 13, 35). Plaintiff alleges no personal action by Munnerlyn. Plaintiff fails to state a claim upon which relief can be granted as to Munnerlyn.
Plaintiff alleges Roundtree is the RCSO Georgia Sheriff and is “responsible for the conduct” of his employees. (ECF No. 23 at 22). It does not appear that the Amended Complaint includes any allegations Roundtree was personally involved in the Georgia report being entered as a warrant. Plaintiff fails to state a claim upon which relief can be granted as to Roundtree.
Plaintiff alleges Defendant Donald is the county administrator in the Georgia county where the case report was allegedly entered erroneously as a warrant. Plaintiff alleges Donald is “responsible for all” county matters and conduct of county employees. (ECF No. 23 at 23). Plaintiff alleges Defendant Davis is the mayor of Augusta, Georgia and is “responsible for all city matters.” (ECF No. 23 at 23). Plaintiff alleges she sent a letter to Defendants Donald and Davis to investigate the matter and received no response. (ECF No. 23 at 67). As to Plaintiff's allegations concerning alleged failure to investigate, Plaintiff, as “a private citizen, lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009) (because plaintiffs in a § 1983 action had no right to a criminal investigation or prosecution of another, plaintiffs had failed to allege a violation of a clearly established statutory or constitutional right); Riley v. Patterson, No. 9:07-2655-HFF-GCK, 2007 WL 2471203 at * 2 (D. S.C. 2007); Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir.1990); Graw v. Fantagsky, 68 Fed.Appx. 378, 383 (3d Cir.2003); Ogunsula v. Holder, No. GJH-15-1297, 2015 WL 3892126, at *2 (D. Md. June 22, 2015), aff'd, 641 Fed.Appx. 260 (4th Cir. 2016). Plaintiff fails to state a claim upon which relief could be granted as to Davis and Donald.
Plaintiff alleges Defendant Reynolds, Director of GBI, and Melvin, Assistant Director of GBI are responsible for all GBI matters and personnel. (ECF No. 23 at 23-24). Plaintiff alleges she wrote a letter to Reynolds and Melvin and they failed to send her a copy of the warrant. (ECF No. 23 at 66). It does not appear that Reynolds or Melvin were personally involved in the Richmond County report being entered as a warrant. Plaintiff fails to state a claim upon which relief can be granted as to Reynolds and Melvin.
Plaintiff sues the governors of South Carolina and Georgia as being responsible for all state employees. (ECF No. 23 at 72-73). Neither had any personal involvement in Plaintiff's allegations, Plaintiff has not made any plausible allegations to meet the supervisory liability exception, and naming governors as Defendants in this circumstance borders on the frivolous. Plaintiff fails to state a claim upon which relief can be granted as to McMaster and Kemp.
Plaintiff sues Defendant Wray, the director of the FBI, as being responsible for FBI employees and being an overall recipient of the report from Defendant Foster and responsible for responses to background information requests regarding Plaintiff. (ECF No. 23 at 32). There are no FBI employees sued here or alleged to have personally acted in regard to Plaintiff. Plaintiff has failed to make plausible allegations upon which relief could be granted and naming the head of the FBI borders on the frivolous. Notwithstanding, there has been no extension of the Bivens contexts where allegations in this Amended Complaint could be construed as an actionable Bivens claim. Defendant Wray is subject to summary dismissal.
Plaintiff alleges Defendant Woods, Director of SCHP/SCDPS, is “responsible for all SCDPS matters and the conduct of SCDPS personnel.” (ECF No. 23 at 11). Plaintiff alleges no personal action by Woods. Plaintiff has failed to make plausible allegations upon which relief could be granted as to Woods.
“Causes of action” under 18 U.S.C. § 241 and 18 U.S.C. § 242
As to Plaintiff's second and third “causes of action” under 18 U.S.C. § 241 conspiracy against rights(ECF No. 23 at 39) and 18 U.S.C. § 242, deprivation of rights (ECF No. 23 at 45), these statutes are criminal statutes and do not create any private civil right of action. Brett v. Blume, No. 3:18-cv-1860-JFA-SVH, 2018 WL 3722313, at *2 (D.S.C. July 16, 2018), report and recommendation adopted, 2018 WL 3711283 (D.S.C. Aug. 3, 2018); Wideman v. Sink, No. 2:21-cv-0482-RMG-MGB, 2021 WL 6494746, at *5 (D.S.C. Nov. 19, 2021), report and recommendation adopted, 2021 WL 5768616 (D.S.C. Dec. 6, 2021); Shahin v. Darling, 606 F.Supp.2d 525, 538 (D. Del.), aff'd, 350 Fed.Appx. 605 (3d Cir. 2009). These “claims” are subject to summary dismissal.
Privacy Act
Under “damages” and “jurisdiction” in the Amended Complaint headings, Plaintiff alleges generally that Defendants violated her rights under the Privacy Act of 1974. (ECF No. 23 at 7, 37). In other locations in the Amended Complaint, Plaintiff generally and conclusorily alleges without specification that the Privacy Act was violated. (ECF No. 23 at 42, 54, 57, 59). Under a liberal construction, the most Plaintiff states is that a copy of the warrant was not provided pursuant to the Privacy Act. (ECF No. 23 at 66-67). Plaintiff attaches a privacy act statement she signed which notes that information may be disclosed for routine uses such as employment. (ECF No. 23-1 at 9). Under Fed R. Civ. Proc. R. 8, Plaintiff has not plausibly alleged with sufficiency any Privacy Act claim. See 5 U.S.C. § 552a.
Fair Credit Reporting Act
Plaintiff generally alleges her rights under the Fair Credit Reporting Act were violated when various employees of the South Carolina State Board of Education and of two different Georgia school districts failed to verify the accuracy of a reported felony warrant in a background report received. (ECF No. 23 at 43). Plaintiff argues that it is a civil rights violation and a violation of the FCRA to list from a background report a case dismissed in 2004 by a North Carolina district attorney that was a misdemeanor for failure to return rental property in 2001. (ECF No. 23 at 5-6).
“To achieve its purpose, the FCRA places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies.” Wilson v. Wells Fargo Bank, N.A., No. 2:20-CV-2780-BHH-MHC, 2021 WL 2003524, at *3 (D.S.C. Apr. 30, 2021), report and recommendation adopted, 2021 WL 2003184 (D.S.C. May 19, 2021)(internal citations and quotations omitted). Plaintiff's allegations as to the FCRA and school district employees and South Carolina Department of Education employees involve those persons as users of a background report. (ECF No. 23). These defendants are not statutory reporters or furnishers of information inside those reports as defined by the FCRA but are users of the report. See 15 U.S.C. § 1681m. Plaintiff here does not plead what type of FCRA claim she is pursuing, but conclusorily states that the FCRA has been violated. (ECF No. 23). Liberally construed, the Amended Complaint's allegations appear to invoke the statutory requirements underlying the “duties of users taking adverse actions on basis of information contained in consumer reports.” 15 U.S.C. § 1681m(a). Any such claims fail as a matter of law; there is no private right of action under the users statute. See Allen v. Kingwood Apartments, No. 1:19-CV-992, 2021 WL 4310577, at *3 (M.D. N.C. Sept. 22, 2021), report and recommendation adopted, 2021 WL 4462731 (M.D. N.C. Sept. 29, 2021), aff'd, No. 21-2108, 2022 WL 521725 (4th Cir. Feb. 22, 2022). Section 1681m(h)(8) states that, “[t]his section shall be enforced exclusively under section 1681s of this title by the Federal agencies and officials identified in that section.” 15 U.S.C. § 1681m(h)(8)(B). “Virtually every federal district court and the only federal court of appeals to interpret [Section] 1681m(h)(8) has found it to be clear and unambiguous: the word ‘section' means ‘section,' and thus no private right of action exists for violations of [S]ection 1681m in its entirety.” Allen, 2021 WL 4310577, at *3 (M.D. N.C. Sept. 22, 2021).
Further, the communication involved here may also be excluded from the FCRA definition of a “consumer report”, as there are exclusions of certain communications for employee investigations relating to compliance with laws and where the communication is not made for purpose of investigating credit capacity and the communication is provided to a government agency/department/unit. See 15 U.S.C. §1681a(y).
Plaintiff generally alleges state law claims of libel, slander, and defamation related to her consented disclosure of her background report. (ECF No. 23). The statute 15 U.S.C. § 1681h(e) generally bars such state law claims. “Congress intended this section's general bar on defamation, invasion of privacy, and negligence actions to be the quid pro quo for providing full disclosure under the FCRA.” Ross v. F.D.I.C., 625 F.3d 808, 814 (4th Cir. 2010). “The only exception to this bar is a narrow one, requiring proof of “malice or willful intent to injure [the] consumer.” Id. Plaintiff's Amended Complaint does not plausibly allege this narrow exception as to the education defendants.
SSN
Plaintiff alleges Defendant Norris displayed her full social security number and this violated her “privacy rights.” (ECF No. 23 at 29, 41). “Courts in other Circuits have found that disclosure of one's social security number does not violate one's constitutional right to privacy.” Sebree v. Kenderine, 2008 WL 6496686, at *2 (D. Md. Mar. 19, 2008), affd sub nom, 294 Fed.Appx. 783 (4th Cir. 2008). To recover under the Privacy Act, a plaintiff must allege pecuniary loss; merely alleging general damages is not sufficient. Haywoodv. Owens, No. 8:19-CV-01025-JFA-JDA, 2019 WL 2292548, at *3 (D.S.C. Apr. 23, 2019), report and recommendation adopted, 2019 WL 2284931 (D.S.C. May 29, 2019). Plaintiff has failed to plausibly allege a claim upon which relief could be granted as to her social security number.
In the order authorizing service on some Defendants, out of an abundance of caution, the court ordered the Clerk to redact Plaintiff's full social security number that Plaintiff submitted. Fed. R. Civ. Proc. 5.2.
Teacher Certification Application as to Constitutional Rights
As to Plaintiff's liberally construed § 1983 claims under the Fourth and Fourteenth Amendments against educational defendants(school district and department of education employees), constitutional due process rights are only at issue when there is a deprivation of a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). It does not appear under the facts alleged that Plaintiff has pleaded a deprivation of a protected liberty interest in her application for a South Carolina teaching certificate as to Defendants who are employees of the South Carolina Department of Education. “A property interest requires more than a ‘unilateral expectation'”; instead, there must be a “legitimate claim of entitlement.” Biser v. Town of Bel Air, 991 F.2d 100, 104 (4th Cir.1993); see also Harmon v. Cumberland Cnty Bd. OfEduc., 186 F.Supp.3d 500, 510 (E.D. N.C. 2016)(finding as to due process concerns, plaintiff there did not possess a cognizable property interest in her teaching license); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972)(finding no property interest in university re-employment); Shirer v. Anderson, 88 F.Supp. 858, 862 (E.D.S.C. 1950)(“the teacher's certificate relates only to the right to teach in the service of the state; and it cannot be a denial of due process for the state to provide for revocation of such certificate by administrative action without provision for judicial review”). Plaintiff has failed to allege a claim upon which relief could be granted.
Plaintiff makes no allegations of any cognizable property interest as to the alleged job offers as to the school district employee defendants.
South Carolina Department of Education Defendants
Defendant Crews of the South Carolina Department of Education notified Plaintiff there was a hold on her certification application due to her background check and it would go before the Certification Review Committee for clearance. (ECF No. 23-1). As discussed above Plaintiff has failed to plausibly allege a claim under the FCRA and has failed to state a claim upon which relief can be granted as to no protected liberty interest in obtaining a teaching certificate as discussed above.
The notice included information “regarding your ‘Right to Challenge Criminal History Information Indicated on FBI/SLED Reports.'”
Plaintiff alleges Defendant Hazelwood received a background report. (ECF No. 23 at 18, 21, 32). Plaintiff alleges Hazelwood communicated back and forth with her about the validity of the warrant reported inside of the report and was “beyond nasty to her and was never able to produce the felony warrant for fraud pursuant to the Fair Credit Reporting Act and 5 U.S.C. § 552.” (ECF No. 23 at 52). This is the extent of allegations against Hazelwood. Under Fed. R. Civ. Proc. R. 8, and the principles of Iqbal and Twombly, Plaintiff has failed to plausibly state a claim upon which relief could be granted as to Defendant Hazelwood.
Plaintiff alleges Defendant Spearman was provided a copy of a background check. (ECF No. 23 at 18). Plaintiff alleges Spearman never responded to her letters about the Georgia warrant and “continued to accuse Plaintiff of felony warrant.” (ECF No. 23 at 67-68). This is the extent of allegations against the South Carolina Superintendent of Education. Plaintiff has failed to state a claim upon which relief can be granted as to Defendant Spearman.
Clayton County School Defendants
Plaintiff alleges Defendant Beasley, Superintendent of Clayton County Public Schools, is responsible for conduct of employees. (ECF No. 23 at 24). Plaintiff alleges Beasley's name was on the letterhead of an August 2021 letter from Defendant Postell simply stating a background check was performed and the results were listed below for review that may or may not disqualify employment. (ECF No. 23-1 at 5). Plaintiff has failed to state a cognizable claim upon which relief could be granted as to Beasley.
Plaintiff alleges Defendant Trawick, Chief of Police for Safety and Security of Clayton County Public Schools, violated her civil rights by listing results of a background check from Postell to Edwards. (ECF No. 23 at 5). Plaintiff alleges Trawick never responded to her letter about the felony warrant reported on the background check. (ECF No. 23 at 25). Plaintiff alleges Trawick is responsible for Postell. (ECF No. 23 at 25). Plaintiff has failed to state a cognizable claim upon which relief could be granted as to Trawick.
Plaintiff alleges Defendant Wilson, former HR Director of Clayton County Schools, was responsible for human resource matters and responsible for the conduct of Edwards and Trawick. (ECF No. 23 at 26). Plaintiff alleges she asked Wilson why she was not hired, and Edwards responded. (ECF No. 23 at 27). Plaintiff alleges no one validated the contents of the background check. (ECF No. 23 at 71). Plaintiff has failed to state a cognizable claim upon which relief could be granted as to Wilson.
Plaintiff alleges Defendant Potsnell, the administrative assistant of the Department of Safety and Security of Clayton County Public Schools sent out an email to others in his department that simply stated a background check was performed and the results were listed below for review that may or may not disqualify employment. (ECF No. 23-1 at 5); (ECF No. 23 at 26). Plaintiff has failed to state a cognizable claim upon which relief could be granted as to Potsnell.
Plaintiff alleges Defendant Edwards, Compliance Officer for the Clayton County Schools, exchanged emails with Plaintiff regarding the information in the background check. (ECF No. 23 at 27). Plaintiff alleges Edwards is responsible for obeying the laws. (ECF No. 23 at 28). Plaintiff alleges Edwards could not provide a copy of the warrant from Georgia. (ECF No. 23 at 71). Plaintiff has failed to state a cognizable claim upon which relief could be granted as to Edwards. Clarke County School Defendants
Plaintiff alleges Defendant Clark, a principal in the Clarke County School District, offered employment and rescinded the offer for employment in July 2021 when informed by other defendants of the background check information. (ECF No. 23 at 29). Plaintiff alleges Clark refused to take her calls and never produced the warrant that was reported as information in the background report. (ECF No. 23 at 70). Plaintiff has failed to plausibly allege a claim upon which relief can be granted as to Defendant Clark.
Plaintiff alleges Defendant Jordan of Clarke County School District sent background check information to other Defendants. (ECF No. 23 at 3). Plaintiff alleges none of the defendants have been able to produce the warrant listed in the reports. (ECF No. 23 at 4). Plaintiff alleges Jordan listed a 2004 dismissed NC case on the report and that this is a privacy invasion and a violation of the FCRA. (ECF No. 23 at 5-6). Plaintiff alleges Defendant Jordan stated Plaintiff lied on her employment application. (ECF No. 23 at 21). Defendant Jordan is the other signator on the Release form signed by Plaintiff which Plaintiff consented that “any such acquisition of information by the CCSD prior to or during my employment is not an invasion of my privacy, violates none of my rights under the laws, federal or state, do hereby understand the reason and necessity for the CCSD to have access to such information.” (ECF No. 23-1 at 7). As discussed above, Plaintiff has failed to plausibly allege a claim upon which relief can be granted as to the FCRA.
Plaintiff alleges Defendant Sizemore, Security of Clarke County School District, gave a background report to other Defendants. (ECF No. 23 at 3). Plaintiff alleges Sizemore violated her civil rights by listing a dismissed case on her report and that she did not misrepresent information on a job application because she has not been convicted. (ECF No. 23 at 5-6). Plaintiff alleges generally there has been a violation of the FCRA. (ECF No. 23 at 6). Plaintiff alleges Sizemore is responsible for ensuring personnel obey the laws. (ECF No. 23 at 32). Plaintiff alleges Sizemore refused to talk to her on the phone and never produced the actual warrant listed in the background report pursuant to the FCRA and the Privacy Act. (ECF No. 23 at 70). Plaintiff has failed to plausibly allege a claim upon which relief could be granted as to Defendant Sizemore, as discussed above as to the FCRA and as to supervisory liability.
Plaintiff alleges Defendant Xernona Thomas, the Superintendent of Clarke County School District, is responsible for all personnel and Defendant Clark's offer and rescission of a job. (ECF No. 23 at 28). Plaintiff has failed to plausibly allege a claim upon which relief could be granted as to Defendant Thomas.
Plaintiff alleges Defendant Fisher, Director of Operations of Clarke County School District, is responsible for all CCSD operations and conduct of employees in July 2021. (ECF No. 23 at 31). Plaintiff has failed to plausibly allege a claim upon which relief could be granted as to Defendant Fisher as to personal action or the supervisory liability exception.
Plaintiff alleges she corresponded with Defendant Norris, Clarke County School District for months about providing an actual warrant and she continued to send the criminal report of the warrant. (ECF No. 23 at 4). Plaintiff alleges because of the background report information Defendant Norris continued to accuse her of misrepresentation on a job application. (ECF No. 23 at 5). Plaintiff alleges Norris violated her civil rights by listing in the report an older dismissed case and that this violated the FCRA. (ECF No. 23 at 5). Plaintiff alleges Norris wrote on one of the reports that she spoke with Richmond County and the warrant was still active. (ECF No. 23 at 16). Plaintiff alleges Norris “vigorously defended the felony and was very nasty about it.” (ECF No. 23 at 30). Plaintiff has failed to plausibly allege a claim upon which relief could be granted as to Defendant Norris.
Of note, Plaintiff filed a “Notice of Voluntary Dismissal” of Defendant Norris but only as to “malicious prosecution under [§ 1983] and [the] Georgia Tort Claims Act.” (ECF No. 38). Out of abundance of caution, the court provides analysis and summarily dismisses Defendant Norris.
Plaintiff alleges Defendant Blankenship, Clarke County School District, is responsible for ensuring HR personnel obey the laws. (ECF No. 23 at 31). Plaintiff has failed to plausibly allege a claim upon which relief could be granted as to Defendant Blankenship.
Intentional Infliction of Emotional Distress
Under the heading intentional infliction of emotional distress, Plaintiff alleges she sent correspondence to various defendants and that none of the defendants could provide proof of a warrant and thus because of their conduct, she “has suffered intentional infliction of emotional distress by all defendants.” (ECF No. 23 at 65-72). To the extent Plaintiff attempts to allege a claim of intentional infliction of emotional distress, Plaintiff has made only conclusory statements and has failed to allege sufficient facts to support a claim for intentional infliction of emotional distress under state law. See Bass v. S.C. Dep't of Soc. Servs., 780 S.E.2d 252, 260-261 (S.C. 2015). Accordingly, Plaintiff's state law claim for intentional infliction of emotional distress is subject to summary dismissal.
Under this heading, there are also allegations regarding and references to the Privacy Act, FCRA, and constitutional right violations, which have been considered in this report under the appropriate headings.
Conclusion
There is no requirement that the district court anticipate all future arguments and there is no requirement on the court to explore exhaustively all potential claims of a pro se plaintiff. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The court cannot conjure up questions never squarely presented. Gordon, 574 F.2d at 1147-1151. The court is not to take on the role of advocate in liberally construing a complaint. Id. Pleadings that consist of labels and conclusions of causes of actions do not comply with Fed. R. Civ. Proc. R. 8. Iqbal, 556 U.S. at 678. The court is not required to accept as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555. The court reviewed Plaintiff's Amended Complaint under these principles and provides the following recommendation.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the Amended
Complaint in this case. Specifically, it is recommended that Defendants Nell, Williamson, Keel, Shwedo, Munnerlyn, Roundtree, Donald, Davis, Reynolds, Melvin, McMaster, Kemp, Wray, Woods, Beasley, Trawick, Wilson, Potsnell, Edwards, Clark, Jordan, Sizemore, Xernona Thomas, Fisher, Norris, Blankenship, Crews, Hazelwood, and Spearman, be summarily dismissed with prejudice2 and without issuance and service of process. It is recommended Defendant Crosby is dismissed without prejudice as Plaintiff filed a Notice of Voluntary Dismissal on March 30, 2022.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed.Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal of Nell, Williamson, Keel, Shwedo, Munnerlyn, Roundtree, Donald, Davis, Reynolds, Melvin, McMaster, Kemp, Wray, Woods, Beasley, Trawick, Wilson, Potsnell, Edwards, Clark, Jordan, Sizemore, Xernona Thomas, Fisher, Norris, Blankenship, Crews, Hazelwood, and Spearman in this case be with prejudice, as Plaintiff has had an opportunity to amend, filed an Amended Complaint, and has failed to cure deficiencies as to those Defendants. (ECF No. 40). In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Foster, Blanchard, Huckso, Sutton, Wilkerson, McNeil, Kevin Thomas, Crooley, and Dickens.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he 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 of Court
United States District Court
Post Office Box 2317
Florence, 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).