Opinion
4:22-1868-TLW-TER
11-18-2022
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Jason Medlin, Richmond County School System, Daniel Hucko, Co Foster, Patrick Dean Blanchard, Richmond County Sheriff's Office, Georgia Bureau of Investigation GBI, Georgia Applicant Processing System, GEMALTO/THALES, Clayton County Public Schools, Clarke County School District, and Officer Sutton, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
This is a civil action filed by a pro se litigant, proceeding 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.
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 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 v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). 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 her, 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
Plaintiff has a number of pending actions and recently dismissed actions in this court; some of which involve the same factual allegations as the instant action. All of Plaintiff's actions are subject to review for potential summary dismissal as Plaintiff is proceeding pro se and in forma pauperis. The court reviews Plaintiff's complaints under 28 U.S.C. § 1915, which directs the court to summarily dismiss a complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, as well as when monetary relief is sought from a defendant immune from such relief.
The District of South Carolina appears to be an improper venue to bring this action. Plaintiff's allegations surround an incident with Georgia defendants in Georgia, while Plaintiff was in Georgia. Plaintiff's current location in South Carolina is irrelevant under 28 U.S.C. § 1391(b). No defendants are sued that are involved in the South Carolina arrest in this particular action and would be duplicative and frivolous if named again as there is a served action against South Carolina Defendants as to the South Carolina arrest. (ECF No. 1). The statute, 28 U.S.C. § 1406(a) provides: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Dismissal instead of transfer is proper here as Plaintiff has already attempted to bring claims against some of these Defendants in the South District of Georgia and those actions were dismissed. See Reaves v. Foster, Hucko, et. Al, No. 1:21-cv-120-JRH-BKE (S.D. Ga.) and Reaves v. Medlin, No. 1:19-cv-29-JRH-BKE (S.D. Ga.).
Error! Main Document Only.The statute, 28 U.S.C. § 1391(b), governs where the instant action may be brought:
(b) Venue in general.--A civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391(b). The District of South Carolina does not satisfy any of these subsections insofar as Plaintiff's Complaint under review is concerned.
Out of abundance of caution, regardless of proper dismissal under venue, alternatively, claims and defendants will be addressed.
Plaintiff sues again Defendants Hucko, Blanchard, and Sutton. (ECF No. 1 at 1). Plaintiff is already pursuing Defendants Hucko, Blanchard, and Sutton for the events surrounding the Georgia warrant in case No. 4:22-cv-318-TLW-TER. Plaintiff is already pursuing similar claims in two other actions in this court, originally, in 4:22-cv-318-TLW-TER for claims purported to be under § 1983, Fourth and Fourteenth Amendments, the Privacy Act, and the Fair Credit Reporting Act and in a removed case 3:22-cv-732-TLW-TER(recently remanded to state court). To the extent Plaintiff alleges in this current action similar claims and/or jurisdictional basis as those in 4:22-cv-318-TLW-TER, these claims are duplicative. When claims arose out of the same facts as the facts in an earlier-filed action, this court dismissed such a complaint where issues raised were directly related to issues in a pending action brought by the same Plaintiff. Davis v. Colleton Cty. Mem'l Libr., No. 2:17-CV-2948-PMD-MGB, 2018 WL 2170338, at *2 (D.S.C. Apr. 12, 2018), report and recommendation adopted, 2018 WL 2149309 (D.S.C. May 10, 2018), dismissed, 2018 WL 6333601 (4th Cir. July 23, 2018); see also, e.g., Reynolds v. Third Circuit Pub. Def. Office, No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted by 2018 WL 1124592 (D.S.C. Mar. 1, 2018); “[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.” Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974 (D.S.C. July 28, 2015) (holding that “the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency”), affirmed by 631 Fed.Appx. 197 (4th Cir. February 4, 2016);Cox v. Cartledge, No. 3:13-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013), adopted by 2013 WL 1401674 (D.S.C. April 8, 2013) (same); Sherron v. Perry, 2016 WL 407303, *2 (W.D. N.C. February 2, 2016) (same). “Because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per curiam).
As to much of Plaintiff's actions concerning the Georgia warrant, the Fourth Circuit states the rule against claim splitting “prohibits a plaintiff from prosecuting its case piecemeal and requires that all claims arising out of a single wrong be presented in one action.”Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 635 (4th Cir. 2015)(quoting Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 Fed.Appx. 256, 265 (4th Cir.2008)). The rule against claim splitting is a corollary to the principle of res judicata. Id. at 635. It is undisputed that it is within a district court's power to stay or dismiss a suit that is duplicative of another federal court suit. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
Plaintiff begins the complaint with definitions cited from 28 U.S.C. § 4101 and stating “this is a civil rights action in which Reaves seeks relief for the violation of her rights secured by 28 USC 4101.” (ECF No. 1 at 1-2, 10). There is no private right of action under 28 U.S.C. § 4101. Nurse v. A Better Choice Case Mgmt., LLC, No. 9:21-CV-455-MBS-MHC, 2021 WL 3410791, at *6 (D.S.C. June 4, 2021), report and recommendation adopted in part, 2021 WL 3088047 (D.S.C. July 22, 2021)(recommitting to determine whether and to what extent Plaintiff engaged in sanctionable conduct). Plaintiff has failed to state a claim upon which relief can be granted as to these allegations.
Even liberally construing Plaintiff's Complaint, allegations of defamation, slander, and libel fail to state a cognizable claim under § 1983. See DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 200-203 (1989).
Section 4101 defines defamation in the context of foreign judgments, where an individual who has already received a favorable foreign judgment for the civil offense of defamation can use a domestic federal court to enforce that judgment; such is not the case here based on Plaintiff's factual allegations. Vogt v. Hartery, No. 1:20-CV-279, 2021 WL 6884866, at *3 (N.D. W.Va. Mar. 18, 2021), report and recommendation adopted sub nom., 2022 WL 453737 (N.D. W.Va. Feb. 14, 2022).
To the extent Plaintiff alleges also that “the claims arise from a May 2019 incident” on a Georgia military base, Plaintiff filed this action on June 13, 2022, which even favorably running time from May 31, 2019 is past two years. “A federal court may sua sponte dismiss a complaint as barred by the statute of limitations on initial review pursuant to 28 U.S.C. § 1915 (2018).” Harriot v. United States, 795 Fed.Appx. 215, 216 (4th Cir. 2020), cert. denied, No. 20-5251, 2020 WL 5883643 (U.S. Oct. 5, 2020). State law provides the statute of limitations for § 1983 claims. In Georgia, the applicable statute of limitations is two years. See Ga. Code Ann. § 9-3-33.
Plaintiff's allegations of conspiracy against Richmond County School District are all in 2019 and past the statute of limitations; the same is true of allegations against the principal Medlin.
Plaintiff alleges after the Georgia May 2019 incident that individual defendants were “stewing” and “continued to stir the pot” and that they “concocted this story about a felony warrant.” (ECF No. 1 at 3-4). To the extent liberally construed Plaintiff alleges a conspiracy by defendants, Plaintiff makes conclusory allegations. “To establish a civil conspiracy under § 1983, [the plaintiff] must present evidence that the [defendants] acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in [his] deprivation of a constitutional right.” Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir.1996). There must be a showing that the defendants entered into some sort of an agreement to deprive the plaintiff of a constitutional right. Id.; see also Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir.1995) (noting that a conspiracy claimant “must show an agreement or a ‘meeting of the minds' by defendants to violate the claimant's constitutional rights”). Courts have held plaintiffs to a relatively stringent standard in assessing whether a conspiracy claim has been properly alleged. See Gooden v. Howard County, 954 F.2d 960, 969-70 (4th Cir.1992). Plaintiff has failed to state a federal conspiracy claim under § 1983 upon which relief could be granted.
To the extent Plaintiff seeks monetary damages, Defendant GBI, Richmond County Sheriff's Office, and GAPS are entitled to sovereign immunity. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”). A state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of Georgia has not consented to be sued in this case. Ga. Code Ann. § 50-21-23(b). This immunity extends to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001); Presnell v. Paulding Cnty., Ga., 454 Fed.Appx. 763, 766 (11th Cir. 2011). Thus, state agencies are entitled to immunity and GBI, Richmond County Sheriff's Office, and GAPS are subject to summary dismissal.
To the extent Plaintiff names sheriff office, these are buildings not amendable to suit. Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000)(unpublished opinion). To the extent liberally construed Plaintiff was attempting to name each county instead of a building, the county of Richmond would be immune from suit as arms of the state as discussed above as to state agencies.
Gemalto, a nonstate actor, was also terminated by Plaintiff in No. 4:22-cv-318-TLW-TER by the Amended Complaint after Plaintiff was informed of the law regarding nonstate actors. See also Guidetti v. Cnty of Greenville, 2011 WL 5024287 (D.S.C. Sept. 12, 2011). Gemalto is subject to summary dismissal here for the same reason. In order to state a claim under § 1983, Plaintiff must allege that a constitutional violation “was committed by a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). To implicate 42 U.S.C. § 1983, conduct must be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). To become state action, private action must have a “sufficiently close nexus” with the state that the private action “may be fairly treated as that of the State itself.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)(internal citation and quotation omitted).
To the extent Plaintiff states: “As of the filing of this action, none of the defendants listed herein have been able to produce a copy of this felony warrant,” (ECF No. 1 at 15), it appears that public records filed with this court show an active felony warrant dated December 21, 2020, available for Plaintiff's viewing. Reaves v. Dickens, No. 4:22-cv-318-TLW-TER (ECF No. 81-1).
Plaintiff's allegations as to Clayton County Public Schools and Clarke County School District are that they did not give her a copy of the warrant used to deny her employment. (ECF No.1 at 13-15). Plaintiff vaguely and conclusory states her claims are under the FCRA. (ECF No. 1 at 13). “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 involve Defendant Clayton County Public Schools and Clarke County Public School District as a user of a background report. (ECF No. 1). Defendants are not a statutory reporter or furnisher of information inside those reports as defined by the FCRA but is a user 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. 1). Liberally construed, the conclusory 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,
Further, as discussed herein as to the rule against claim splitting and frivolous duplicate lawsuits, Clayton County Public Schools are also sued in No. 4:22-cv-1806-TLW-TER and No. 4:22-cv-3065-TLW-TER and Clarke County School District in No. 4:22-cv-3065-TLW-TER.
“[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).
To the extent liberally construed Plaintiff is attempting a due process claim against these schools/district, Plaintiff's 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 not being employed due to a felony background report. “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. Of Educ., 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 reemployment). Further, the district judge in No. 4:22-cv-318, adopted the recommendation of dismissal with prejudice of individual defendants employed by school districts due to Plaintiff's failure to state a claim. See No. 4:22-cv-318.
It is a waste of judicial resources to request Plaintiff name actual persons as defendants instead of agencies as the court already did this in No. 4:22-cv-318 and Plaintiff is pursuing some individual defendants, regarding the Georgia warrant incident in that court action.
There is no venue in this court, alternatively, Plaintiff has failed to state a claim upon which relief can be granted and this action is subject to summary dismissal for all the foregoing reasons.
RECOMMENDATION
It is recommended that the District Court dismiss this action without prejudice for lack of proper venue, or in the alterative, dismiss this action pursuant to §1915(e) with prejudice and without issuance and service of process.
Error! Main Document Only. It is recommended that this action be dismissed without leave to amend and that the court enter a final decision in this case. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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 Post Office Box 2317 Florence, South Carolina 29503
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).