Opinion
C. A. 2:23-00771-BHH-MHC
08-14-2023
Sandra Wilder-Rhodan Plaintiff, v. State of South Carolina, Family Court Judge Nancy C. McLin; Attorney J. Graham Sturgis, Jr.; Atty. Veronica G. Smalls; Vera Simmons; Aness Jenkins; Sarah Rhodan; Kimberly Rhodan; Shacoga Simmons; Dave Friedman; Keller Williams Realty; Wells Fargo Bank; Judge Cely Brigman; Judge Kenneth E. Fulp, Jr.; Judge William J. Wylie, Jr.; Atty Eduardo Curry; Rep. Micheal F. Rivers, House Seat # 121; Ruff & Ruff, Attys at Law, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This is a civil action filed by Plaintiff Sandra Wilder-Rhodan, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. In an Order entered May 5, 2023, 2023, Plaintiff was directed to file certain documents to bring her case into proper form. She was also apprised of material deficits in the Complaint and given time to file an amended complaint. ECF No. 4. Plaintiff has provided the necessary documents to bring her case into proper form. She filed an Amended Complaint on May 25, 2023. ECF No. 10.
I. BACKGROUND
Plaintiff's Amended Complaint appears to allege claims concerning South Carolina family court and probate court matters. Plaintiff failed to provide a “Facts” section or a “Relief” section in her Amended Complaint. As best as can be determined from her Amended Complaint and affidavit (ECF No. 10-1), Plaintiff and George M. Rhodan allegedly had a common law marriage for approximately twenty years as of October 2, 2018. ECF No. 10-1 at 1. Plaintiff indicates that she filed an action in family court on December 1, 2014, and contends that she and George M. Rhodan reached an agreement as to the matters concerning their marital home and a 401(k) account. ECF No. 10 at 10.
This appears to be George M. Rhodan's date of death.
In December 2016, there supposedly was a “frivolous scheme of divorce [] by [attorney] J. Graham Sturgis, Jr [and] Vera Simmons.” ECF No. 10-1 at 1. There allegedly was some type of hearing in family court before Defendant Judge Nancy C. McLin (McLin) in December 2016. ECF No. 10 at 3. Plaintiff claims that, on an unidentified date, Vera Simmons asserted in family court that she was the spouse of George M. Rhodan. See ECF Nos. 10 at 5, ECF No. 10-1 at 1. Plaintiff claims that the “divorce scheme” was a plan to take property, including cash and IRA savings. ECF No. 10-1 at 1.
Sometime later, Plaintiff and George M. Rhodan attended a family court mediation proceeding. Plaintiff claims that Defendants Graham Sturgis (Sturgis), Vera Simmons, and Nessa Jenkins were present and that there was a scheme by Defendants to prevent Plaintiff and George M. Rhodan from speaking with each other at the mediation. Plaintiff claims “[t]hat at no time during the mediation process was it alleged or stated the basic ground for a divorce proceeding.” ECF No. 10 at 3-4. It appears that a divorce was granted on an unspecified date. Plaintiff contends that the divorce was improperly granted because she was not separated from George M. Rhodan for twelve months, the final order “conflicts erroneous testimony George Rhodan as husband of Vera Simmons[,]” and the written order was not entered until after his death. See ECF Nos. 10 at 4-5, 7, 10-11; 10-1 at 1.
This appears to be the Defendant named as Aness Jenkins in the caption (ECF No. 10 at 1) of Plaintiff's Amended Complaint. She also refers to an Anessa Jenkins later in her Amended Complaint. ECF No. 10 at 11.
Plaintiff alleges that Vera Simmons later claimed to be George M. Rhodan's child and Vera Simmons was assigned as the personal representative of his estate. She claims that an unidentified person “forged Vera Simmons['] name on the death certificate.” Thereafter, Defendant Sturgis allegedly “signed a stop payment order on both ... bank accounts and IRA accounts.” ECF No. 10 at 2, 5. Plaintiff appears to allege that she did not receive property, including a truck and a car, French doors, windows, a fence, a wheelbarrow, a dog kennel, the marital home in Ladson, a property on Lady's Island, and money in bank accounts and IRA accounts at Wells Fargo that she allegedly possessed or should have received as George M. Rhodan's alleged rightful heir. See ECF Nos. 10 at 1-2, 5, 7, 13; 10-1 at 1-2.
Plaintiff contends that Judge Kenneth E. Fulp, Jr. (Fulp) refused to correct the personal representation documents and the death certificate. She alleges there was no evidence that Vera Simmons was George M. Rhodan's daughter. ECF No. 10 at 11.
Plaintiff appears to be seeking the return of money from bank accounts (including IRA accounts), personal property, the marital home, and the Lady's Island property. She also appears to ask for the return of certain attorney and other fees. See ECF No. 10 at 1-2, 7, 8, 13.
II. STANDARD OF REVIEW
Although Plaintiff is not proceeding in forma pauperis, this filing is nonetheless subject to review pursuant to the inherent authority of this Court to ensure that a plaintiff has standing; subject matter jurisdiction exists; and the case is not frivolous. See Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. Aug. 22, 2012); Ferguson v. Wooton, 741 Fed.Appx. 955 (4th Cir. 2018) (collecting cases and explaining that “[f]rivolous complaints are subject to dismissal pursuant to the district court's inherent authority, even when the plaintiff has paid the filing fee” and that “dismissal prior to service of process is permissible when a court lacks subject matter jurisdiction over a patently frivolous complaint”); Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-364 (2d Cir. 2000); see also Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (noting that although 28 U.S.C. § 1915(d) was not applicable where a pro se party filed an appeal and paid the filing fee, the court had “inherent authority, wholly aside from any statutory warrant, to dismiss an appeal or petition for review as frivolous”). “[I]t is well established that a court has broad inherent power sua sponte to dismiss an action, or part of an action, which is frivolous, vexatious, or brought in bad faith.” Brown v. Maynard, No. L-11-619, 2011 WL 883917, at *1 (D. Md. Mar.11, 2011) (citing cases). Therefore, a court has “the discretion to dismiss a case at any time, notwithstanding the payment of any filing fee or any portion thereof, if it determines that the action is factually or legally frivolous.” Id. As such, this case is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See, e.g., Carter v. Ervin, No. 14-0865, 2014 WL 2468351 (D.S.C. June 2, 2014); Cornelius v. Howell, No. 06-3387, 2007 WL 397449, at *3 (D.S.C. Jan. 8, 2007), report and recommendation adopted, 2007 WL 4952430 (D.S.C. Jan. 30, 2007), aff'd, 251 Fed.Appx. 246 (4th Cir. 2007).
Plaintiff paid the filing fee. See receipt number 200019320.
Pre-screening under 28 U.S.C. § 1915 is inapplicable in pro se, non-prisoner, fee-paid cases. See Bardes v. Magera, No. 2:08-487-PMD-RSC, 2008 WL 2627134, at *8-10 (D.S.C. June 25, 2008) (finding persuasive the Sixth Circuit's opinion in Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999), that 28 U.S.C. § 1915(e)(2) is inapplicable to actions that are not pursued in forma pauperis).
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Claims Asserted on Behalf of the Estate of George M. Rhodan
Plaintiff, proceeding pro se, also appears to be attempting to bring claims on behalf of the Estate of George M. Rhodan as to her allegations concerning the probate court proceedings. However, Plaintiff has presented no facts to indicate that she may appear for or represent the Estate of George M. Rhodan.
While 28 U.S.C. § 1654 allows individuals to “plead and conduct their own cases personally,” the statute does not extend that right to represent other parties. Under federal law, “a person ordinarily may not appear pro se in the cause of another person or entity.” See Pridgen v. Andresen, 113 F.3d 391, 392-93 (2nd Cir. 1997) (pro se litigant may not represent corporation, estate, partnership, or “his or her minor child”). Courts are in general agreement that where an estate has beneficiaries other than the personal representative, the estate must be represented by counsel. See Witherspoon v. Jeffords Agency, Inc., 88 Fed.Appx. 659 (4th Cir. 2004); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Shepard v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002); Pridgen, 113 F.3d at 393 (“[W]hen an estate has beneficiaries or creditors other than the administratrix or executrix [or personal representative], the action cannot be described as the litigant's own, because the personal interests of the estate, other survivors, and possible creditors will be affected by the outcome of the proceedings.”) (internal quotations omitted). Thus, any claims that Plaintiff is attempting to assert on behalf of the Estate of George M. Rhodan should be summarily dismissed.
Although a pro se litigant cannot generally represent third parties in a lawsuit, there may be an exception to this rule where the person attempting to represent the estate pro se is the personal representative of the estate and there are no creditors or other beneficiaries. See Witherspoon, 88 Fed.Appx. 659, at **1 (remanding the matter for further proceedings to ascertain whether there are any creditors involved). Plaintiff has not alleged that she is the personal representative of the Estate of George M. Rhodan (and she has not filed a copy of any appointment as personal representative of the Estate). Additionally, she has not alleged that there are no creditors of the Estate. Finally, Plaintiff has not alleged that there are no other possible beneficiaries of the Estate.
B. Jurisdiction
Liberally construed, Plaintiff appears to allege that this court has federal question jurisdiction because she asserts constitutional claims under 42 U.S.C. § 1983, a claim for harassment under Title VII, and violations of federal statutes. See ECF No. 11 at 1-6, 8. Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Generally, a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331. Here, Plaintiff has not alleged diversity jurisdiction. Nor, as discussed below, has Plaintiff alleged facts to indicate that this court has federal question jurisdiction.
Moreover, Plaintiff cannot establish diversity jurisdiction. A district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Plaintiff and most of the Defendants appear to be citizens of South Carolina. See ECF No. 10 at 2, 11-13. Thus, complete diversity is lacking and Plaintiff may not bring her claims pursuant to § 1332. Even if Plaintiff could establish diversity jurisdiction, this court should abstain from hearing a domestic relations action based on diversity jurisdiction. See Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir. 2006) (“We find additional support for our decision in this case in the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters.”) (citing Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980)). The Supreme Court has held that under the domestic relations exception, “‘divorce, alimony, and child custody decrees' remain outside federal jurisdictional bounds[.]” Marshall v. Marshall, 547 U.S. 293, 308 (2006) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 703-04 (1992)); see also Wasserman v. Wasserman, 671 F.2d 832, 834 (4th Cir. 1982) (“diversity jurisdiction does not include the power to grant divorces, determine alimony or support obligations, or decide child custody rights”). “Additionally, case law in [the Fourth Circuit] recognizes the well-established ‘probate exception' to diversity jurisdiction, i.e., federal courts have no jurisdiction over matters that are exclusively within the jurisdiction of state probate courts.” Hollander v. Early, No. 1:11-2620-TLW-JRM, 2011 WL 9918820, at *4 (D.S.C. Dec. 22, 2011), report and recommendation adopted, 2013 WL 227768 (D.S.C. Jan. 22, 2013). “The ‘probate exception' to this Court's subject matter jurisdiction prohibits the exercise of federal jurisdiction over matters that are within the exclusive jurisdiction of a state probate court, even if all of the prerequisites for diversity jurisdiction are otherwise present.” Myers v. Kaufmann, No. 2:10-cv-2081-RMG-RSC, 2010 WL 4338097, at *3 (D.S.C. Sept. 16, 2010), report and recommendation adopted, 2010 WL 4340381 (D.S.C. Oct. 25, 2010), aff'd, 420 Fed.Appx. 302 (4th Cir. 2011); see also Beattie v. J.M. Tull Foundation, 941 F.Supp. 57, 58-59 (D.S.C. 1996) (explaining the probate exception divests federal court jurisdiction over “cases involving the probate of wills, disturbing the possession of an estate in the hands of a state probate court, or involving the conclusiveness of judgements of state courts in probate matters”).
1. Appeal of State Court Actions
Plaintiff appears to be attempting to appeal the results of rulings from state court actions as to a family court divorce proceeding and a probate court proceeding. This action should be dismissed for lack of jurisdiction because federal district courts do not hear “appeals” from state court actions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983) (a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see also Hulsey v. Cisa, 947 F.3d 246 (4th Cir. 2020). To rule in favor of Plaintiff on claims filed in this action or to provide her the relief she appears to request may require this court to overrule and reverse orders and rulings made in the state court. Such a result is prohibited under the Rooker-Feldman doctrine. See Davani v. Virginia Dep't. of Transp., 434 F.3d 712, 719-720 (4th Cir. 2006); see also Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293-294 (2005); Jordahl v. Democratic Party of Va., 122 F.3d 192, 201 (4th Cir. 1997).
The Rooker-Feldman doctrine is applicable both to claims at issue in a state court order and to claims that are “inextricably intertwined” with such an order. See Exxon Mobil, 544 U.S. at 284. Plaintiff has not alleged any facts to indicate that this is a case where the federal complaint raises claims independent of, but in tension with, a state court judgment such that the Rooker-Feldman doctrine would not be an impediment to the exercise of federal jurisdiction. See Vicks v. Ocwen Loan Servicing, LLC, 676 Fed.Appx. 167 (4th Cir. 2017) (district court erred in applying Rooker-Feldman doctrine to bar appellants' claims where the claims did “not seek appellate review of [the state court] order or fairly allege injury caused by the state court in entering that order”); Thana v. Bd. of Licenser Comm'rs for Charles Cty., Md., 827 F.3d 314, 320 (4th Cir. 2016) (Rooker-Feldman doctrine is not an impediment to the exercise of federal jurisdiction when the federal complaint raises claims independent of, but in tension with, a state court judgment simply because the same or related question was aired earlier by the parties in state court).
Appeals of orders issued by lower state courts must go to a higher state court, not to a federal district court. Only the Supreme Court of the United States may review (review is discretionary by way of a writ of certiorari and is not an appeal of right) a decision of a state's highest court. See 28 U.S.C. § 1257; Ernst v. Child and Youth Servs., 108 F.3d 486, 491(3d Cir. 1997). This Court cannot sit in judgment of a state court decision, and must dismiss Plaintiff's claims concerning the state court decisions for lack of subject matter jurisdiction. See, e.g., Moore v. Commonwealth of Virginia Dep't of Soc. Servs., No. 3:15CV515, 2016 WL 775783, at *5 (E.D. Va. Feb. 25, 2016).
Additionally, to the extent that there is a pending state court action, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 (1971), and its progeny preclude this Court from interfering with the ongoing proceedings as Plaintiff can raise these issues in the state court proceedings. The Younger doctrine applies to civil proceedings that “implicate a State's interest in enforcing the orders and judgment of its courts.” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (internal quotation marks omitted). Thus, to the extent that Plaintiff is seeking injunctive or declaratory relief related to family court or probate matters underlying the actions in state court, her claims are barred under the Younger doctrine.
The abstention principles established in Younger might not require dismissal of a claim for damages. See, e.g., Lindsay v. Rushmore Loan Mgmt., Servs., LLC, No. PWG-15-1031, 2017 WL 167832, at *1, 4 (D. Md. Jan. 17, 2017) (“[C]auses of action for damages, such as Plaintiffs', may be stayed but not dismissed on Younger abstention grounds.”) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996)).
2. No Federal Jurisdiction Based on Alleged Violations of Federal Criminal Statutes
Even if Plaintiff could show that this action is not prohibited as an attempt to appeal state court decisions, she fails to establish federal jurisdiction based on the numerous federal criminal statutes she lists which include 18 U.S.C. §§ 242 (Deprivation of rights under color of law); 641 (Public money, property or records); 655 (Theft by bank examiner); 664 (Theft or embezzlement from employee benefit plan); 985 (Civil forfeiture of real property); 1341 (Fraud and swindles); 1342 (Fictitious name or address); 1343 (Fraud by wire, radio, or television); 1344 (Bank fraud); 1956(a)(1)(B)(i) (Laundering of monetary instruments- to avoid a transaction reporting requirement under State or Federal law); and 2326 (Enhanced penalties for certain criminal convictions, including convictions under 1341-1344 in connection with telemarketing or email marketing). However, Plaintiff's citation to these criminal statutes does not provide federal question jurisdiction under 28 U.S.C. § 1331 because there is no private cause of action under these statutes. Plaintiff has not alleged any facts to establish that these statutes create a private cause 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). Where, as here, criminal statutes bear “no indication that civil enforcement of any kind was available to anyone,” a civil complaint alleging violations of such statutes cannot be sustained as a matter of law. Cort v. Ash, 422 U.S. at 80.
Because Plaintiff cannot establish jurisdiction under 18 U.S.C. §§ 1341-1344, she cannot establish jurisdiction under § 2326 which provides for enhanced penalties for violations of these statutes.
As noted above, Plaintiff has not alleged any facts to establish that these statutes create a private cause of action. Further, courts have found that there are no private cause of action under these statutes. See United States v. Oguaju, 76 Fed.Appx. 579, 581 (6th Cir. 2003) (finding that the District Court properly dismissed claim filed pursuant to 18 U.S.C. §§ 241 and 242 because there is no private right of action under either of these criminal statutes); Ali v. Timmons, No. 04-CV-0164E, 2004 WL 1698445, at *2 (W.D.N.Y. July 26, 2004) (“Initially, plaintiff's claims for criminal theft and embezzlement must be dismissed because there is no private right of action, either express or implied, under the criminal statute raised by plaintiff, 18 U.S.C. § 641.”); Turner v. E. Sav. Bank, FSB, No. 09-CV-2637-AW, 2010 WL 1409858 (D. Md. Apr. 2, 2010) (§ 655 is a criminal statute that provides no private cause of action or civil penalty); NYSA-ILA Med. & Clinical Servs. Fund by & Through Capo v. Catucci, 60 F.Supp.2d 194, 208-09 (S.D.N.Y. 1999) (no civil cause of action under 18 U.S.C. § 664); Addlespurger v. Corbett, No. 09-cv-1064, 2011 WL 3418975, at *4 (W.D. Pa. Aug. 1, 2011) (18 U.S.C. §§ 1341 and 1343 do not create a private cause of action); Mueller v. United States, No. EDCV 10-00276-DSF (MAN), 2010 WL 5060544, at *4 (C.D. Cal. Oct. 22, 2010) (citing Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir. 1999), for the proposition that there is no private right of action under the mail fraud statutes, including 18 U.S.C. §§ 1341 and 1342); Edmonds v. Seavey, No. 08-CV-5646, 2009 WL 2949757, at *6 n.8 (S.D.N.Y. Sept. 15, 2009) (“There is no private cause of action under 18 U.S.C. § 1344.”); Roy v. Bank of New York Mellon, No. 17CV06729(MKB)(LB), 2018 WL 3912281, at *6 (E.D.N.Y. Aug. 14, 2018), report and recommendation adopted, 2018 WL 4771898 (E.D.N.Y. Sept. 30, 2018 (no private cause of action for money laundering under § 1956); Crooked Creek Props., Inc. v. Ensley, No. 2:08-CV-1002-WKW[WO], 2009 WL 3644835, at *6 & n.15 (M.D. Ala. Oct. 28, 2009), aff'd, 380 Fed.Appx. 914 (11th Cir. 2010) (per curiam) (“[F]ederal courts have not recognized a private right of action for breach of § 1956, the money laundering statute.”).
3. Title VII
Plaintiff appears to allege that Defendant Sturges violated Title VII of the 1964 Civil Rights Act by “failing to properly avoid discriminatory acts and disparity in treatment of caselaw.” ECF No. 10 at 9. She asserts “A. cardinal rule violated, to a black couple as opposed to a white couples who are subjected to the same State laws is racist” Id. (errors in original). Title VII of the Civil Rights Act of 1964 prohibits “an employer ... [from] discriminat[ing] against any individual with respect to h[er] compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin....” 42 U.S.C. § 2000e-2(a)(1). Plaintiff simply has failed to allege any facts to indicate that the federal court has jurisdiction under this statute as to her asserted claims.
4. 60(d)(3)
Plaintiff asserts “60(d)(3) to vacate a judgment for fraud on the Court.” It is unclear, but she appears to be attempting to ask that this Court vacate judgments in the state court pursuant to Federal Rule 60(d)(3). But this rule applies to judgments in the federal court, not a state court. See, e.g., Graham v. South Carolina, No. 6:11-595-MBS-KFM, 2012 WL 527606, at * 3 n. 1 (D.S.C. Feb. 16, 2012). Nor is there any indication that the request for relief from an order or judgment pursuant to 60(b)(3) for fraud is timely as it does not appear that this action was filed within a year after the entry of the challenged judgment or order or the date of the challenged proceeding. See Fed. R. Civ. P. 60(c)(1).
C. Frivolousness
Additionally, even if there is jurisdiction for Plaintiff to bring claims for constitutional violations under § 1983, her claims are frivolous and should be dismissed for the reasons discussed below.
1. Judicial Immunity
Defendants Judges McLin, Cely Brigman, Fulp, and William J. Wylie, Jr. are subject to summary dismissal because, based upon the facts alleged, they are entitled to judicial immunity. It is well settled that judges have immunity from claims arising out of their judicial actions. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.”); Webb v. Cty. of Allendale, No. 1:15-cv-02766-JMC, 2018 WL 661462, at *7 (D.S.C. Jan. 31, 2018) (“This judicial immunity also extends to the county for a state Family Court Judge's judicial actions.”); Thomas v. Charleston Cty., No. 2:17-cv-1958-MBS-MGB, 2017 WL 11562553, at *5 (D.S.C. Sept. 5, 2017) (noting that plaintiff's claims against family court judges for their judicial actions “lack[ed] any basis in law, and [were] legally and factually frivolous”), report and recommendation adopted, 2020 WL 5569766 (D.S.C. Sept. 15, 2020); see also Siegert v. Gilley, 500 U.S. 226 (1991) (immunity presents a threshold question which should be resolved before discovery is even allowed. Further, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356-57. Judicial immunity is not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that “immunity applies even when the judge is accused of acting maliciously and corruptly”). Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11.
2. The Attorney/Law Firm Defendants Are Not State Actors Under § 1983
Plaintiff's claims under § 1983 against Defendants Sturgis, Veronica G. Smalls, Eduardo Curry, and Ruff & Ruff, Attys at Law are subject to summary dismissal because these attorneys and/or law firms are not state actors. To state a claim under § 1983, a 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).
These Defendants are attorneys and/or law firms that represented Plaintiff or other parties. Plaintiff has alleged no facts to indicate that these Defendants acted under color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk Cnty. v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) (“A lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.”); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney).
Plaintiff also references “Title 42 1985” and states that “the defendant lawyer acting in conspiracy with the state actors under the color of law have become state actors in this case.” ECF No. 10 at 2. However, Plaintiff has simply not alleged any facts to support her conclusory allegation that there was a conspiracy between the unidentified lawyer and the unidentified state actors.
3. Private Individuals And Corporate Defendants Are Not State Actors Under § 1983
Plaintiff's claims under § 1983 against Defendants Vera Simmons, Aness Jenkins, Sara Rhoda, Kimberly Rhodan, Shacoga Simmons, Dave Friedman, Keller Williams Realty, Wells Fargo Bank, and Micheal Rivers are subject to summary dismissal because these Defendants are not state actors under § 1983. With few exceptions, purely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983 or the United States Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1983). The “under-color-of-state-law element of § 1983,” like the Fourteenth Amendment's “state action” requirement, “excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation omitted); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (holding that § 1983's requirement that a defendant act under “color of law” is treated as the equivalent to the Fourteenth Amendment's “state action” requirement). Although a private individual or corporation can act under color of state law, his, her, or its actions must occur where the private individual or entity is “a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Plaintiff has alleged no facts to plausibly suggest that the actions of these Defendants were anything other than purely private conduct.
Although Plaintiff names this Defendant as Rep. Michael Rivers, State House #121, she has not alleged any facts about this Defendant in her Amended Complaint and has not alleged any claims against Rivers in his capacity as a state representative.
Additionally, it is well settled that private litigants do not become state actors merely by engaging in litigation. Edwards v. Washington, No. 2:11-cv-3518-SB-BM, 2012 WL 1229506, at *6 (D.S.C. Jan. 5, 2012), report and recommendation adopted, 2012 WL 1237440 (D.S.C. Apr. 12, 2012); see also Allen v. Del Valle, No. 2:19-CV-2042-MBS-MGB, 2019 WL 6718055, at *4 (D.S.C. Oct. 25, 2019)) (“Although Allen makes a conclusory allegation that [his ex-wife] Del Valle acted in concert with other defendants, that is insufficient to demonstrate [Del Valle] has even potential liability as a state actor.”), report and recommendation adopted, No. CV 2:19-2042MBS, 2019 WL 6715930 (D.S.C. Dec. 9, 2019.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that this action be dismissed without prejudice, without issuance and service of process, and without further leave to amend. See Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (holding that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
See Platts v. O'Brien, 691 F. App'x. 774 (4th Cir. 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[] must be one without prejudice because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”).
Plaintiff's attention is directed to the important notice on the following 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 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. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).