Opinion
4:22-1806-TLW-TER
11-18-2022
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Richmond County Sheriff's Office, Georgia Bureau of Investigation, Georgia Applicant Processing Svc., Clayton County Public Schools, 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 venueto bring this action. Plaintiff's allegations surround an incident with Georgia defendants for a background report from a Georgia company containing a warrant from Georgia ordered by a Georgia school district for a Georgia job. 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 Southern 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.).
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.
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.
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 4545 (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).
Further, as to much of Plaintiff's several 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's allegations as to Clayton County Public Schoolsare that they did not give her a copy of the warrant used to deny her employment. (ECF No.1 at 3, 8). Plaintiff conclusory states her claims are under the FCRA. (ECF No. 1). “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 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 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, 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-1868-TLW-TER and No. 4:22-cv-3065-TLW-TER.
To the extent liberally construed Plaintiff is attempting a due process claim against Clayton County Schools, 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.
Plaintiff also titles a section of the Complaint “Defendants Motion to Dismiss for Failure to State a Claim of Which Relief can be Granted is Not Proper in These Proceedings.” (ECF No. 1 at 9). This is an original action and there are no defendants who have filed a Motion in this action. Plaintiff cannot respond to Motions by other defendants in other pending actions by this initial pleading. To the extent Plaintiff desires to respond to Motions filed by defendants in other pending actions with this court, she must separately appropriately title and caption said response to the applicable case number and file such with the Clerk.
To the extent liberally construed Plaintiff alleges a conspiracy by defendants by alleging that all defendants are working together to tarnish her and bar her from employment, Plaintiff makes conclusory allegations. (ECF No. 1 at 14). “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.
Plaintiff states: “As of the filing of this action, none of these defendants have been able to produce a copy of this felony warrant for inspection that was reported by the Richmond County Sheriff Office, reported by the Georgia Bureau of Investigation, and reported by the Clayton County Public Schools, in violation of the Fourth Amendment malicious prosecution and due process under the Fourteenth Amendment, Fair Credit Reporting Act (FCRA) and Article IV, Section 2, Clause 2 of the U.S. Constitution.” (ECF No. 1 at 3). 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).
To the extent Plaintiff cites to 18 U.S.C. § 241, § 242, these statutes are criminal statutes and do not create any private civil right of action. (ECF No. 1); 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.
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).