Opinion
3:24-cv-1797-CMC-BM
05-16-2024
Thurmond Guess, Sr., Plaintiff, v. Leonardo Brown; Darrell Jackson, Sr.; Rose Ann English; Alfred T. Guess; Marjorie Guess; Marshall Green, Defendants,
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge
Thurmond Guess, Sr. (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action against the above-named Defendants purportedly under 42 U.S.C. § 1983 alleging violations of his rights. ECF Nos. 1; 1-2. Plaintiff is a non-prisoner litigant. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Plaintiff commenced this action by filing a document that was construed as a complaint under 42 U.S.C. § 1983, ECF No. 1, along with supporting documents, ECF No. 1-1. Thereafter, Plaintiff filed a complaint on the standard form. ECF No. 1-2. The Court construes these documents together as the Complaint filed in this matter.
Plaintiff brings this action seeking money damages as the result of Defendants' purported conduct in taking his private property in violation of state law and the United States Constitution. Id. at 2. According to Plaintiff, Defendants Jackson, Green, and English issued an “illegal, false 1 Easement Right of Way Deed to Richland County” on March 10, 1990, and March 18, 1991. Id. at 5. Plaintiff contends his father was deceased when the easement was signed and filed. Id. Plaintiff received a copy of the easement from his sister in October 2021. Id. Plaintiff alleges that Defendant Brown and Richland County Council have refused to return the property back to him. Id. Plaintiff alleges that all Defendants acted together to deprive Plaintiff of his rights. Id. For his injuries, Plaintiff contends that he has suffered mental distress which contributed to Plaintiff suffering a heart attack on January 25, 2023. Id. For his relief, Plaintiff seeks actual damages in the amount of $100 from each Defendant, punitive damages, and compensatory damages. Id. at 8. Plaintiff brings causes of action under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), and under 42 U.S.C. 1983 for violations of his Fifth and Fourteenth Amendment rights. ECF No. 1 at 5-6.
Monell held that municipalities cannot be held liable for alleged actions of their employees on a respondeat superior theory. Monell, 436 U.S. 691. “Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id.
STANDARD OF REVIEW
Plaintiff filed this action 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.
DISCUSSION
Claims pursuant Monell
Although Plaintiff cites Monell, he has not alleged facts showing that the circumstances required for a Monell claim are present in his case. Although Plaintiff alleges that he has presented “municipal action that was the moving force behind the [] unconstitutional policies and practices that led to and included that harmed the plaintiff in this action,” ECF No. 1 at 5, he has not shown a policy or custom and has only alleged actions specific to his own case. Further, he has sued only individuals and not a municipality. Therefore, Plaintiff has not shown that Monell provides a viable claim in this case.
Constitutional Claims
Although Plaintiff indicates he is suing for violations of his Fifth and Fourteenth Amendment rights, all of the Defendants except Brown appear to be 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, Marjorie Guess, and Marshall Green.
Further, although Plaintiff sues Brown as the Richland County Administrator, he has not alleged facts showing that Brown denied him due process, as the easement was filed in 1990, well before Brown was in his position. The Supreme Court has explained that “[b]ecause vicarious liability is inapplicable to . . . § 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). Plaintiff alleges he informed Brown on February 15, 2022, that “this Easement right-of way was a scam.” ECF No. 1 at 5. He further alleges Defendants “are holding the plaintiff['s] land illegal[ly].” Id. However, these allegations are insufficient to show Brown violated his constitutional rights. Therefore, Plaintiff fails to state a cause of action against Brown.
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.
Duplicative Action
Finally, the undersigned is constrained to note that Plaintiff previously brought two cases in this Court making almost identical allegations against the same Defendants as those in the present case. See Guess v. Brown, No. 3:23-cv-2957-CMC (“Guess I”); Guess v. Brown, No. 3:23-cv-6408-CMC (“Guess II”). Plaintiff's Complaint in Guess I was dismissed for his failure to set forth a viable federal claim. Although Plaintiff did not enumerate a claim brought pursuant to Monell in his amended complaint in Guess I, he did mention the case in his objections. ECF Nos. 25, 31. The Honorable Cameron McGowan Currie, United States District Judge, found:
The court agrees with the Magistrate Judge the Amended Complaint does not set forth a viable federal claim under § 1983 or the other criminal statutes under which Plaintiff attempts to bring claims. Plaintiff's objections are overruled for the reasons stated in the Report: he may not bring a civil action under a criminal statute, Defendants other than Brown are not state actors, and he fails to state a claim against Brown under § 1983. Claims under Monell are restricted to municipalities and not a single actor. After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff's
objections, the court adopts and incorporates the Report and Recommendation by reference in this Order. Plaintiff's Amended Complaint is hereby summarily dismissed without prejudice and without issuance and service of process.Guess I, ECF No. 33 at 3. Plaintiff's complaint in Guess II was dismissed for the same reasons, with Judge Currie finding as follows:
The court agrees with the Magistrate Judge the Amended Complaint does not set forth a viable federal claim under § 1983 or Monell. Plaintiff's objections are overruled for the reasons stated in the Report: he has not alleged a specific policy that was violated; Defendants other than Brown are not state actors, and he fails to state a claim against Brown under § 1983. Claims under Monell are restricted to municipalities and not a single actor. In addition, this case has essentially identical allegations and objections as Plaintiff's previous case. Plaintiff is warned if he attempts to file another case with the same allegations, a pre-filing injunction may be ordered. After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff's objections, the court adopts and incorporates the Report and Recommendation by reference in this Order. Plaintiff's Amended Complaint is hereby summarily dismissed without prejudice and without issuance and service of process.Guess II, ECF No. 19 at 2-3.
Accordingly, in addition to the other reasons discussed herein, the present Complaint is subject to dismissal as redundant to the claims in Guess I and Guess II. See Cottle v. Bell, No. 006367, 2000 WL 1144623, at *1 (4th Cir. Aug. 14, 2000) (“Because district courts are not required to entertain duplicative or redundant lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).”); Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1998) (“[D]istrict courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party.”); Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)
(“The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient.”).
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without prejudice and without service of process.
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, Suite 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).