Opinion
C/A No. 4:17-cv-02673-RBH-KDW
11-02-2017
Sepia Vonnetta Blackstock, Plaintiff, v. Hartsville Police Department, Defendant.
REPORT AND RECOMMENDATION
This is a civil action filed by a pro se litigant requesting to proceed in forma pauperis. Pursuant to 28 U.S.C. §636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. I. Factual Background
Sepia Vonnetta Blackstock ("Plaintiff") alleges that the Hartsville Police Department violated her rights because an unnamed police officer refused to file charges against Walgreens for identity theft at Plaintiff's request. She asserts that her claim is filed pursuant to 42 U.S.C. § 1981, Title VI of the Civil Rights Act, the International Covenant on Civil and Political Rights ("ICCPR"), the Federal Torts Claim Act, the Equal Protection Clause of the 14th Amendment to the United States Constitution, and the Articles of the Universal Declaration of Human Rights ("UDHR"). ECF No. 1 at 8-9. Plaintiff asserts that a member of the police department racially profiled her and disregarded her complaints because she is black. Id. at 6. Plaintiff also alleges that the officer told her that he "was not going to file a police report because there was nothing to report . . . ." Id. at 7. Plaintiff requests $25,000.00 in damages. Id. at 4. II. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915. The review has been conducted in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The Complaint in this case was filed under 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." 28 U.S.C. §1915(e)(2)(B)(I), (ii). Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se pleadings, Estelle v. Gamble, 429 U.S. at 97, holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980). The mandated liberal construction afforded pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a pleading to "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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). Even under this less stringent standard, however, the pro se Complaint under review in this case is subject to summary dismissal. III. Discussion
It is settled that initial pleadings, whether submitted by attorneys or by pro se litigants, must contain sufficient "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Godbey v. Simmons, No. 1:11cv704 (TSE/TCB), 2014 WL 345648, at *4 (E.D. Va. Jan. 30, 2014) ("Whether filed by a pro se litigant or not, 'claims brought in federal court are subject to the generally applicable standards set forth in the Supreme Court's entire Rule 8(a) jurisprudence, including [Bell Atlantic Corp. v.] Twombly[, 550 U.S. 544 (2007)] and Iqbal.'") (quoting from Cook v. Howard, 484 F. App'x 805, 810 (4th Cir. 2012)). Even though a pro se plaintiff's pleadings are to be liberally construed, a pro se complaint must still contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 555, 570 (citations omitted); see Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 248, 253-54 (4th Cir. 2005) (pro se pleading dismissal affirmed where insufficient facts alleged to put defendants on notice of or to support asserted due-process claim). The claims need not contain "detailed factual allegations," but must contain sufficient factual allegations to suggest the required elements of a cause of action. Twombly, 550 U.S. at 555; see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (examining sufficiency of factual allegations under Iqbal standards). "[A] formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor will mere labels and legal conclusions suffice. Id. Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Thus, any litigant, including a pro se litigant like Plaintiff, must provide sufficient factual allegations supporting each element of the kind of legal claim she seeks to pursue in this court to allow this court to "draw the reasonable inference that [Defendants are] liable for the misconduct alleged." Id.; see Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003) (a plaintiff must allege facts that support each element of the claim advanced); Leblow v. BAC Home Loans Servicing, LP, No. 1:12-CV-00246-MR-DLH, 2013 WL 2317726, at *3 (W.D.N.C. May 28, 2013) (same). As stated below, Plaintiff's allegations are not sufficient to state plausible claims under any of the statutes or treaties that she references as the basis for her pleading.
Plaintiff's Complaint allegations do not establish a plausible claim under 42 U.S.C. § 1981 because they do not show that Plaintiff was deprived of the benefits of a contractual relationship as a result of her race as required to state a prima facie claim under that statute. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 475-76, 479-80 (2006) ("Any § 1981 claim, therefore, must initially identify an impaired "contractual relationship," § 1981(b), under which the plaintiff has rights"); Habash v. City of Salisbury, Md., 618 F. Supp. 2d 434, 442 (D. Md. 2009) (discussing the elements of a § 1981 claim). Moreover, her equal-protection claim fails because it is only properly brought in this court pursuant to 42 U.S.C. § 1983, which requires that the defendant in such an action be a person. See Monell v. Dep't. of Soc. Serv., 436 U.S. 658, 690 n.55 (1978) (noting that for purposes of § 1983 a "person" includes individuals and "bodies politic and corporate"). It is settled that police departments do not qualify as persons. See, e.g., Hammond v. Fernandes, No. 2:12-1128-MGL-BHH, 2012 WL 3717184, at *8 (July 18, 2012), report and recommendation adopted, 2012 WL 3716432 (D.S.C. Aug. 28, 2012); see Milligan v. Drug Enforcement Admin., No. 3:13-CV-02757-TLW, 2014 WL 897144, at *5 (D.S.C. Mar. 6, 2014) (citing Terrell v. City of Harrisburg Police Dep't, 549 F. Supp.2d 671, 686 (M.D. Pa. 2008); Petaway v. City of New Haven Police Dep't, 541 F. Supp. 2d 504, 510 (D. Conn. 2008); Buchanan v. Williams, 434 F.Supp.2d 521, 529 (M.D. Tenn. 2006)). Additionally, Plaintiff does not allege that she was treated differently from others who were similarly situated, Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2000) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)); see also Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002), and there is no basis on which to hold the police department vicariously liable for the actions of the unnamed police officer under either § 1981 or § 1983. See Jett v. Dallas Indep. School Dist., 491 U.S. 701, 736 (1989) (no vicarious liability under §§ 1981, 1983).
Furthermore, no plausible claim under Title VI of the Civil Rights Act of 1964 is stated because Plaintiff does not allege that Defendant is federally funded or that she was prevented from participation in a federally funded program. See Davis v. City of N.Y., 959 F. Supp. 2d 324, 364 (S.D.N.Y. 2013) ("[P]laintiffs can prevail on their Title VI claim only if they can show that the City is the recipient of federal assistance, and does not merely benefit from that assistance."); see also Mack v. City of High Springs, 486 F. App'x 3, 7 (11th Cir. 2012) (affirming dismissal where the plaintiff fails to allege that the defendant was federally funded or that he was denied participation in a federally funded program). No plausible FTCA claim is stated because there are no allegations showing that Defendant is a federal official or employee. See Simmons v. Himmelreich, 136 S. Ct. 1843, 1846 (2016) (FTCA provides "jurisdiction over tort claims against the United States for the acts of its employees . . . ."). Finally, no plausible claims are stated under either the ICCPR or the UDHR because neither treaty provides a private right of action to individual citizens. See Dutton v. Warden, FCI Estill, 37 F. App'x 51, 53 (4th Cir. 2002) (ICCPR); Moore v. Solomon, No. 1:16-CV-238-FDW, 2016 WL 6272406, at *3 (W.D.N.C. Oct. 25, 2016) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004)), aff'd, 688 F. App'x 196 (4th Cir. 2017) (UDHR). IV. Recommendation
Accordingly, it is recommended that the district court dismiss the Complaint in this case without prejudice. See United Mine Workers v. Gibbs, 383 U.S. 715 (1966); see also Neitzke v. Williams, 490 U.S. at 324-25.
IT IS SO RECOMMENDED. November 2, 2017
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).