Opinion
2:23-cv-6086-BHH-MGB
05-10-2024
John Singletary, Plaintiff, v. Isaac Cramer, Keith Rossoen, Thomas James Lee, AstenJohnson, Charleston County Election, and Others To Be Named, All Jointly and Severally, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, proceeding pro se, originally filed this civil action in the Magistrate's Court for Charleston County. (Dkt. No. 1-1.) On November 28, 2023, Defendants removed the action to federal court. (Dkt. No. 1.) This matter is now before the Court upon a Motion to Dismiss filed by Defendant Isaac Cramer, Defendant Thomas James Lee, and Defendant Board of Voter Registration & Elections of Charleston County (“BVRE”) (Dkt. No. 32), and a Motion to Dismiss filed by Defendant Keith Rossomme and Defendant AstenJohnson, Inc. (Dkt. No. 36).Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., this matter has been referred to the undersigned for all pretrial proceedings. For the reasons set forth below, the undersigned RECOMMENDS that both Motions to Dismiss (Dkt. Nos. 32, 36) be GRANTED and that Plaintiff's case be DISMISSED in full.
Defendant BVRE explains that it was incorrectly identified as “Charleston County Election” in Plaintiff's Amended Complaint. (Dkt. No. 32 at 1.) Similarly, Defendants Rossomme and AstenJohnson, Inc. explain that they were improperly identified as “Keith Rossoen” and AstenJohnson, respectively, in Plaintiff's Amended Complaint. (Dkt. No. 35 at 1; Dkt. No. 36-1 at 1.) In the interest of accuracy, the undersigned will refer to Defendants by their proper names throughout this Report and Recommendation.
BACKGROUND
This case arises from Defendants' purported “interference [with] the 2019 North Charleston Mayoral Election.” (Dkt. Nos. 1-1, 30.) According to Plaintiff, he “was denied the opportunity to compete on a fair basis in the election” due to “collective overt and covert actions of the defendants ....” (Dkt. No. 30.) More specifically, Plaintiff alleges that “Defendant[s] emailed Plaintiff threatening to remove plaintiff['s] campaign signs when in fact no sign[s] . . . were ever on defendants['] property.” (Id.) Plaintiff further claims that “[Defendants were] caught on video on numerous occasions destroying, intentionally taking [possession] of, removing, and throwing Plaintiff's campaign signs in a dumpster . . . without authorization from plaintiff ” (Id.) In addition, Plaintiff claims that the “[e]lection defendants are under contractual obligation by transfer of election duties to conduct North Charleston Mayoral Election in accordance with the S.C. State laws” and that “Defendants acted with negligence in their failure and refusal to adhere to the mandatory laws of South Carolina regarding election requirements.” (Id.) Finally, Plaintiff asserts that “[a]ll active voters in North Charleston have a right to vote and have that vote equally protected and properly counted however defendants failed to do so.” (Id.)
In light of the foregoing, Plaintiff filed this civil action requesting “Compensatory, Punitive, Consequential, Pecuniary, Aggravated, Nominal, and Restitution Damages, equal to $1,000,000,” as well as attorney's fees and “any other affirmative relief that the Court may deem necessary and proper.” (Dkt. Nos. 1-1, 30.) Plaintiff's Amended Complaint appears to bring claims for: (1) violation of S.C. Code Ann. § 16-13-30(B); (2) breach of contract; (3) negligence; and (4) violation of 42 U.S.C. § 1983.
PROCEDURAL HISTORY
As noted, Plaintiff originally filed this civil action in the Magistrate's Court for Charleston County. (Dkt. No. 1-1.) On November 28, 2023, Defendants removed the case to federal court. (Dkt. No. 1.) On December 5, 2023, Defendants Rossomme and AstenJohnson filed a Motion to Dismiss asking the Court to dismiss Plaintiff's claims against them. (Dkt. No. 6.) On that same day, Defendants Cramer, Lee, and BVRE filed a Motion to Dismiss requesting the same. (Dkt. No. 9.) On December 6, 2023, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the possible consequences if he failed to respond adequately to Defendants' motions, and informing him that his deadline to respond was January 8, 2024. (Dkt. No. 10.) By January 23, 2024, Plaintiff had not responded to either motion. The Court extended Plaintiff's response deadline to February 5, 2024. (Dkt. No. 12.) On February 5, 2024, Plaintiff responded to both motions. (Dkt. Nos. 17, 18.)
On February 5, 2024, Plaintiff filed an Amended Complaint. (Dkt. No. 14.) On February 7, 2024, Defendants Cramer, Lee, and BVRE filed a Motion to Strike Plaintiff's Amended Complaint from the record. (Dkt. No. 23.) On February 8, 2024, the Court granted the motion and ordered Plaintiff to file a Motion for Leave to Amend his Complaint by February 22, 2024. (Dkt. No. 24.) Plaintiff did so, and the Court granted his motion on February 27, 2024. (Dkt. Nos. 27, 29.) Plaintiff's operative Amended Complaint was added to the docket on that same day. (Dkt. No. 30.) Because Defendants' pending Motions to Dismiss now pertained to an outdated pleading, the Court mooted the motions and instructed Defendants to refile them, as necessary.
On March 6, 2024, Defendants Cramer, Lee and BVRE filed a renewed Motion to Dismiss Plaintiff's claims against them. (Dkt. No. 32.) On March 7, 2024, Defendants Rossomme and AstenJohnson did the same. (Dkt. No. 36.) The Court again issued Orders pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the possible consequences if he failed to respond adequately to Defendants' motions, and informing him that his deadline to respond was April 8, 2024. (Dkt. Nos. 33, 38.) After Plaintiff failed to respond by the deadline, the Court extended Plaintiff's deadline to respond to April 29, 2024. (Dkt. No. 40.) Plaintiff filed a joint response to both motions on that date. (Dkt. No. 42.) Defendants Cramer, Lee, and BVRE replied to Plaintiff's response on May 3, 2024. (Dkt. No. 43.) Defendants Rossomme and AstenJohnson replied on May 6, 2024. (Dkt. No. 44.) As such, the motions before the Court have been fully briefed and are ripe for disposition.
LEGAL STANDARD
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, while a court must draw all reasonable inferences in favor of the plaintiff, it need not accept “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4thCir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Because Defendants' motions set forth similar arguments and because Plaintiff's Amended Complaint does not clearly delineate the party (or parties) against whom he brings each claim, the undersigned has organized this Discussion section by claim rather than separating out Defendants' respective motions.
I. 42 U.S.C. § 1983 Claim
The undersigned first recommends that Plaintiff's federal § 1983 claim should be dismissed. A civil action under 42 U.S.C. § 1983 “creates a private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). Thus, to state a claim for relief under § 1983, the plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Here, Plaintiff alleges, in relevant part:
Plaintiff has a right to vote and run for election on an equal bas[is] with other candidates as a fundamental right. The U.S. Constitution grants, guarantees, and protect[s] such rights for citizens in the USA including the plaintiff. The actions of the defendants while acting under color o[f] law failed to afford plaintiff his constitutional rights. Defendant's actions violated Plaintiff's rights to participate[] in the election on the same bas[is] as other candidates. As a proximate result of defendant's conduct plaintiff has suffered irreparable damages. The actions of the defendants were carried out while acting under color o[f] law and damaged plaintiff.(Dkt. No. 30 at 3.)
Defendants argue that Plaintiff's allegations fail to support a plausible § 1983 claim. Defendants further contend that: (1) Plaintiff cannot assert a valid § 1983 claim against Defendant BVRE because it has Eleventh Amendment immunity and is not a “person” for purposes of § 1983; (2) Plaintiff does not allege that Defendants Cramer, Lee, Rossomme and AstenJohnson were personally involved in violating his constitutional rights; (3) Plaintiff's claims are based on the 2019 North Charleston Mayoral Election and are therefore barred by the applicable statute of limitations; and (4) Plaintiff cannot assert a valid § 1983 against Defendants Rossomme and AstenJohnson because they are not state actors. (Dkt. No. 32 at 12-15; Dkt. No. 36-1 at 6-7.)
First, the undersigned agrees that Plaintiff cannot bring a § 1983 claim against Defendants Rossomme and AstenJohnson. In their motion to dismiss, Defendants Rossomme and AstenJohnson explain that they are private actors. (Dkt. No. 36-1 at 3.) Indeed, “Defendant AstenJohnson is a textile manufacturer with its corporate office located in North Charleston [and] Defendant Rossomme is employed by AstenJohnson. (Id.) Plaintiff does not contest this assertion.
It is well-settled that a plaintiff may not sue private parties for federal constitutional violations pursuant to § 1983, because private parties are not “state actors.” See, e.g., Hurt v. G.C. Murphy Co., 800 F.2d 260 (4th Cir. 1986) (affirming dismissal of suspected shoplifter's § 1983 suit against store because there was no state action by private defendants); Grant-Davis v. Fortune, No. 2:15-cv-4211-PMD-MGB, 2015 WL 12868172, at *2 (D.S.C. Nov. 20, 2015) (“Plaintiff's § 1983 claim fails at the second element because all five Defendants are private actors.”), adopted, 2015 WL 12868171 (D.S.C. Dec. 7, 2015), aff'd, 645 Fed.Appx. 288 (4th Cir. 2016); Brunson v. FBI, No. 3:08-cv-2965-JFA-BM, 2008 WL 4511049 (D.S.C. 2008) (“the United States Constitution regulates only the Government, not private parties”). Further, the United States Supreme Court has emphasized that the second element of a § 1983 claim excludes “merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). The Amended Complaint provides no facts from which this Court could infer that Defendants Rossomme and AstenJohnson acted as anything other than private parties. As such, Plaintiff fails to state a valid § 1983 claim against these Defendants.
Plaintiff's § 1983 claims against the other Defendants also fail. As Defendants correctly note, Plaintiff has not plausibly alleged a violation of his constitutional rights by any party. Even construed broadly and drawing all inferences in Plaintiff's favor, he alleges only that he received a “threatening” email from “Defendant[]s” asking him to remove campaign signs from a certain area; that “Defendant[]s” threw away campaign signs; and that “Defendant[]s” did not conduct the 2019 North Charleston Mayoral Election fairly. (See generally Dkt. No. 30.) Notably, Plaintiff does not identify the specific Defendants who committed these alleged acts,nor does he identify the constitutional right(s) he believes Defendants violated through such acts. (See generally Dkt. No. 30.) Plaintiff also does not explain how Defendants conducted the 2019 election unfairly, or how Defendants' email and disposal of campaign signs may have impacted his rights. (Id.)
In his response brief, Plaintiff clarifies that Defendant Rossomme discarded “Plaintiff's property.” (Dkt. No. 42 at 2.) Plaintiff does not, however, provide any further details to support his § 1983 claim. (See generally id.)
To the extent Plaintiff alleges that he was “denied [] equal protection,” Plaintiff provides nothing more than conclusory assertions in support of this claim. (Id.) Plaintiff does not identify any disparate treatment or even a class of individuals that was treated more favorably than Plaintiff. (Id.)
Ultimately, Plaintiff provides no details from which this Court could infer that his right to relief for purported violations of § 1983 may rise above the speculative level. See Andrew, 561 F.3d at 266. Accordingly, the undersigned RECOMMENDS that Plaintiff's § 1983 claim should be DISMISSED.
Because Plaintiff's Amended Complaint fails to state facts sufficient to allege a valid § 1983 claim against any Defendant, the undersigned need not determine whether Plaintiff's § 1983 claims are barred by the statute of limitations or whether Defendant BVRE is an “arm of the State.” (See Dkt. No. 32 at 12-13.) Nevertheless, these arguments further support dismissing Plaintiff's § 1983 claim for the reasons set forth in Defendants' briefing.
II. State Law Claims
The undersigned recommends that Plaintiff's state law claims should be dismissed, as well. In the interest of completeness, the undersigned has considered the merits of each state law claim, below. However, should the District Judge disagree with the below recommendations, the undersigned alternatively recommends that the District Judge decline to exercise supplemental jurisdiction over Plaintiff's state law claims. If a federal district court has original jurisdiction over a civil action, it shall also have supplemental jurisdiction over any state law claims that are “so related” to the claims under the court's original jurisdiction “that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). On the other hand, without original jurisdiction, a federal court generally cannot exercise supplemental jurisdiction over state law claims. See id. § 1367(c)(3) (stating that the district court may decline to exercise supplemental jurisdiction over state law claims if it has dismissed all claims over which it has original jurisdiction); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (stating that “if the federal claims are dismissed . . ., the state claims should be dismissed as well”). Here, the undersigned recommends that Plaintiff's only federal claim (violation of 42 U.S.C. § 1983) should be dismissed. As such, Plaintiff sets forth no valid federal cause of action and his state law claims may therefore be remanded to state court.
Defendants claim that Plaintiff fails to set forth a plausible claim for relief under S.C. Code Ann. § 16-13-30(B) because S.C. Code Ann. § 16-13-30 is a criminal statute prohibiting larceny. (Dkt. No. 32 at 6; Dkt. No. 36-1 at 4.) Defendants contend that Plaintiff therefore cannot bring a valid civil claim under the statute, as it does not create a private right of action. (Dkt. No. 32 at 6; Dkt. No. 36-1 at 4.) The undersigned agrees.
S.C. Code Ann. § 16-13-30(B) is a state criminal statute which mandates that a person convicted of “[l]arceny of goods, chattels, instruments, or other personalty valued in excess of two thousand dollars” is guilty of a felony and “must be fined in the discretion of the court or imprisoned not more than” five or ten years, depending on the value of the personalty. It is well-settled that no private right of action exists under a criminal statute unless the legislature intended for such a right to be created. See Whitworth v. Fast Fare Markets of South Carolina, Inc., 338 S.E.2d 155 (S.C. 1985); Dorman v. Aiken Communications, Inc., 398 S.E.2d 687, 689 (S.C. 1990); see also Dennison v. Hayes, No. 2:21-cv-2877-RMG-MHC, 2022 WL 18135244, at *5 (D.S.C. Dec. 2, 2022), adopted, 2023 WL 112755 (D.S.C. Jan. 5, 2023).
Here, there is no indication that the legislature so intended. Plaintiff has not alleged any facts to suggest that this criminal statute creates a private right of action, and “[t]he Supreme Court historically has been loath to infer a private right of action from ‘a bare criminal statute,' because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group.” Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 80 (1975)). Thus, Plaintiff, as a private individual, cannot bring a civil action for relief pursuant to this criminal statute. See S.C. Code Ann. § 17-1-10 (“A criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for punishment thereof.”); see also Tennyson v. Avin, No. 3:21-cv-0039-MGL-SVH, 2021 WL 3023692, at *7 (D.S.C. Apr. 19, 2021) (recommending dismissal of two statutory offenses under the South Carolina Code because plaintiff could not bring a civil action to enforce a criminal statute), adopted, 2021 WL 3022627 (D.S.C. July 16, 2021).
To the extent Plaintiff is asking the Court to prosecute a state claim under this criminal statute, the undersigned notes that “a private citizen such as Plaintiff has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person.” Dennison v. Delany, No. 2:21-cv-3717-RMG-MHC, 2022 WL 379935, at *3 (D.S.C. Jan. 7, 2022), adopted, 2022 WL 263325 (D.S.C. Jan. 28, 2022) (referencing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (explaining that a private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person); Diamondv. Charles, 476 U.S. 54, 6465 (1986) (applying Linda R.S. and collecting cases); Collins v. Palczewski, 841 F.Supp. 333, 340 (D. Nev. 1993) (“Long ago the courts of these United States established that ‘criminal statutes cannot be enforced by civil actions.'”)). Further, this Court does not bring criminal prosecutions as a form of relief in civil cases. von Fox v. College of Charleston, No. 2:17-cv-483-RMG-MGB, 2017 WL 4479496, at *7 (D.S.C. June 21, 2017) (referencing State v. Blakely, 742 S.E.2d 29, 33 (S.C. 2014)), adopted in relevant part sub nom. Fox v. College of Charleston, 2017 WL 2937595 (D.S.C. July 10, 2017); see also Green v. Sanchez, No. 2:21-cv-01376-RMG-MGB, 2021 WL 8971506, at *3 (D.S.C. Dec. 2, 2021) (“[A] private citizen cannot obtain criminal charges against defendants or initiate a criminal investigation through a civil action.”), adopted, 2022 WL 2333855 (D.S.C. June 28, 2022).
Accordingly, Plaintiff cannot allege a valid cause of action for violation of S.C. Code Ann. § 16-13-30(B) against any Defendant. The undersigned therefore RECOMMENDS that this claim be DISMISSED.
B. Breach of Contract
Defendants next contend that the Amended Complaint fails to set forth a plausible breach of contract claim. (Dkt. No. 32 at 7-8; Dkt. No. 36-1 at 5.) To state a valid a breach of contract claim under South Carolina law, Plaintiff must allege three elements: (1) a binding contract entered into by the parties; (2) breach or unjustifiable failure to perform the contract; and (3) damage as a direct and proximate result of the breach.” See Beaumont v. Walter Scotty Branch, No. 2:23-cv-03546-DCN, 2023 WL 7075101, at *10 (D.S.C. Oct. 26, 2023) (citing King v. Carolina First Bank, 26 F.Supp.3d 510, 517 (D.S.C. 2014)); see also Fuller v. E. Fire & Cas. Ins. Co., 24 S.E.2d 602 (S.C. 1962). Defendants assert that Plaintiff has failed to allege the most fundamental element of this claim-existence of a contract. (Dkt. No. 32 at 8; Dkt. No. 36-1 at 5.)
Specific to his breach of contract claim, Plaintiff alleges that “[e]lection defendants are under a contractual obligation by transfer of election duties to conduct North Charleston Mayoral Election in accordance with S.C. State laws and have failed to do so.” (Dkt. No. 30 at 1.) Plaintiff further explains:
North Charleston transfers to defendant via S.C. Statute the authority and contract to conduct elections in accordance with S.C. State Election Laws. The defendants have failed to adhere to the S.C. Election Laws and have deviated from past practices regarding North Charleston election reporting practices. According to the transfer agreement, the defendants have failed to perform its obligations resulting in damages to plaintiff.(Id. at 2.)
Construing these allegations broadly, Plaintiff appears to allege that Defendant BVRE, Defendant Cramer (Defendant BVRE's Executive Director), and Defendant Lee (an employee of Defendant BVRE), as the “election defendants,” have a contractual agreement with North Charleston which details how Defendants BVRE, Cramer, and Lee “conduct elections.” (Id. at 1-2.) Plaintiff does not, however, allege that any of the Defendants have a contractual agreement with Plaintiff himself. (See generally Dkt. No. 30.) For this reason, Plaintiff's breach of contract claim fails. The undersigned therefore RECOMMENDS that such claim be DISMISSED.
C. Negligence
Defendants also assert that Plaintiff's negligence claim fails. (Dkt. No. 32 at 9; Dkt. No. 36-1 at 5-6.) At the outset, the undersigned notes that the Amended Complaint does not specifically set forth a negligence claim. (See generally Dkt. No. 30.) However, Plaintiff's third cause of action states:
Defendants did in fact have a duty to plaintiff to exercise a duty of care in performing their election duties and as a citizen their civic duty to not act negligently and willfully destroy the property of others without consent. The defendants conduct [] breached their duty causing harm and damages to plaintiff.(Id. at 3.)
The Court must liberally construe Plaintiff's pleadings in light of his pro se status, and the allegations set forth in Plaintiff's third cause of action, when liberally construed, appear to set forth a negligence claim. See Erickson, 551 U.S. at 94. As such, the undersigned has considered whether the factual allegations underlying Plaintiff's negligence claim are “enough to raise [his] right to relief above the speculative level,” such that this claim can survive under Rule 12(b)(6). Twombly, 550 U.S. at 555. For the reasons discussed below, the undersigned recommends that it cannot.
A negligence claim under South Carolina law requires facts plausibly suggesting that: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached the duty by a negligent act or omission; (3) the defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damage. See Ward v. Moton, No. 2:22-cv-04703-TLW-MGB, 2023 WL 9067764, at *4 (D.S.C. Nov. 20, 2023), adopted, 2023 WL 8596008 (D.S.C. Dec. 12, 2023) (referencing Andrade v. Johnson, 588 S.E.2d 588, 592 (S.C. 2003)). Defendants claim that Plaintiff's negligence claim fails for want of a legal duty. (Dkt. No. 32 at 9; Dkt. No. 36-1 at 5-6.)
More specifically, Defendants assert that “BVRE is a state entity conducting elections for the benefit of the public, and not for Plaintiff individually. Public officials are ‘generally not liable to individuals for their negligence in discharging public duties as the duty is owed to the public at large rather than anyone individually,'” and that the Amended Complaint “offers no allegations that would support a deviation from the general rule in this case.” (Dkt. No. 32 at 9-10, quoting Vaughan v. Town of Lyman, 635 S.E.2d 631, 634 (S.C. 2006)). To the extent Plaintiff's negligence claim is based upon the purported removal of Plaintiff's signs, Defendants assert that “the relevant statute against disposing of campaign signs is of a chapter of statutes titled ‘Offenses Against Election Laws' . . . [which] are in service of a public purpose, not an individual,” and that “there is no common law duty not to dispose of signs left on public property ....” (Dkt. No. 36-1 at 6, referencing S.C. Code Title 7, Chapter 25.)
The undersigned finds Defendants' arguments convincing. Plaintiff points the Court to no case law or statutes from which the Court may infer that Defendants owed Plaintiff, individually, a duty of care to “perform[] their election duties” or to not dispose of campaign signs. (Dkt. No. 30 at 3; see generally Dkt. No. 42.) Instead, Plaintiff provides baseless legal conclusions and unwarranted inferences drawn from the facts of his complaint. Nemet Chevrolet, Ltd., 591 F.3d at 253 (noting that the Court need not accept legal conclusions, unwarranted inferences, and unreasonable conclusions or arguments).
Moreover, the Amended Complaint contains only a formulaic recitation of the elements of Plaintiff's negligence claim, rendering the claim insufficient to withstand Defendants' Rule 12(b)(6) motions. See Twombly, 550 U.S. 555 (“A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (quoting Papasan, 478 U.S. at 286)). The undersigned therefore RECOMMENDS that Plaintiff's negligence claim be DISMISSED.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT both Motions to Dismiss (Dkt. Nos. 32, 36), and DISMISS Plaintiff's case in full. In the alternative, the undersigned RECOMMENDS that Plaintiff's § 1983 claim be
DISMISSED and that his state law claims be REMANDED to state court.
To the extent Plaintiff requests an opportunity to further amend his complaint, Plaintiff has not filed a properly captioned Motion to Amend and proposed amended complaint for the Court's consideration. Regardless, it is unlikely that Plaintiff could cure the deficiencies outlined in this Report and Recommendation, given the factual basis for Plaintiff's claims and the fact that he has had already had three opportunities to amend his complaint (two prior to removal and one following). (See Dkt. Nos. 1-1, 29, 30.)
IT IS SO RECOMMENDED.
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 835
Charleston, South Carolina 29402
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).