Opinion
C/A: 2:18-1804-RMG-BM
02-14-2019
Tiana Elizabeth Grant; Raymond Michael Grant, III; both individually and on behalf of the interest of minor children involved, Plaintiffs, v. South Carolina Department of Social Services, CPS; Adrea Reynolds, DSS HSC I; Kamaria Delaney, DSS Caseworker, Daphne Curry McDaniel, DSS Supervisor; Sasserie Miles, Guardian Ad Litem, Defendants.
REPORT AND RECOMMENDATION
Plaintiffs, Tiana Elizabeth Grant and Raymond Michael Grant, III, proceeding pro se and in forma pauperis, bring this action pursuant to 42 U.S.C. § 1983. Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow for the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980). However, even when considered pursuant to this liberal standard, for the reasons set forth hereinbelow this case is subject to summary dismissal. 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 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].
Background
According to the allegations of the Complaint, Tiana Grant is the mother of three minor children, and Raymond Grant is her father. Tiana Grant asserts that she was asked to go to the South Carolina Department of Social Services, CPS (SCDSS) office to meet with Defendant Adrea Reynolds on March 30, 2016, at which time Reynolds allegedly demanded that Tiana Grant come up with an immediate plan to leave her parents' house along with her minor children or the children would be taken away from her. Complaint, ECF No. 1 at 11-12. Plaintiffs allege that on March 31, 2016, Tiana Grant's children were then taken into custody pursuant to an unfounded Order for Ex Parte custody, that the children were placed in temporary foster care, and that the children suffered mental health/emotional injuries. Id. at 3-4. Plaintiffs claim that the Ex Parte Order for Removal was obtained without probable cause because it was based on incorrect third party hearsay evidence concerning the conditions under which the children were kept (that there was no electricity in the home and the childrens' meals consisted of cereal) and because the Defendants improperly considered evidence of twenty-year old criminal proceedings against Raymond Grant that were expunged from his record. Id. at 5-6. At a hearing held June 8, 2016, a South Carolina family court judge found that SCDSS failed to prove by a preponderance of evidence that the minor children had been abused or neglected, and the children were returned to Tiana Grant's custody. Plaintiffs request compensatory and punitive damages as well as "an adequate letter of apology and admittance of wrongdoing." Id. at 4, 14.
Records from Georgetown County do not contain any reference to the expunged records discussed in the Complaint, but they do show that Raymond Grant was arrested in 2014 on a charge of criminal sexual conduct (CSC) with a minor under the age of 11 -first degree and a charge of CSC with a minor, 3rd degree - Commit/Attempt Lewd act (victim under 16 yrs & actor over 14 yrs), and that these charges were disposed of with the notation "Nolle Prosequi" on July 30, 2015. However, also on July 30, 2015, Raymond Grant pled guilty to the charge of assault and battery, second degree, and was sentenced to eleven months time served, but with an additional notation of no sex offender registry. See Georgetown County Public Index Fifteenth Judicial Circuit Index, https://publicindex.sccourts.org/Georgetown/PublicIndex/CaseDetails.aspx?County=22&CourtAgency=22001&Casenum=2014A2220200447&CaseType=C&HKey=102706678778990801168411810489697710412089105907057991207277656647114701099880987169841028911511448 [CSC with minor under age eleven]; https://publicindex.sccourts.org/Georgetown/PublicIndex/CaseDetails.aspx?County=22&CourtAgency=22001&Casenum=2014GS2200931&CaseType=C&HKey=109 1098775799769821018652871208947559877104107899711781561011147354756680118495050102521018165103111 [CSC third degree]; https://publicindex.sccourts.org/Georgetown/PublicIndex/CaseDetails.aspx?County=22&CourtAgency=22001&Casenum=2015GS2200766&CaseType=C&HKey=1071086552103102112988686491008990105556590761034871715080106971095289776576891131098610486109847281 [assault and battery].
This court "may properly take judicial notice of matters of public record." See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ["We note that '[t]he most frequent use of judicial notice is in noticing the content of court records.'"].
In 2017, Raymond Grant filed a complaint in the United States Court of Federal Claims in which he attempted to challenge his 2015 criminal conviction by the South Carolina Court of General Sessions. On April 4, 2018, the Honorable Lydia Kay Griggsby granted the United States' motion to dismiss for lack of subject matter jurisdiction. In her Order, Judge Griggsby noted that Raymond Grant pled nolo contendere to these charges and was sentenced to eleven months imprisonment. Grant v. United States, No. 17-1540C, 2018 WL 1615873 (Fed. Cl. April 4, 2018).
Discussion
Initially, it is noted that Plaintiffs' attempt to assert claims on behalf of Tiana Grant's children should be dismissed because the children are minors and Plaintiffs have failed to obtain counsel to represent the children. In general, non-attorney parents may not litigate the claims of their minor children in federal court. See Myers v. Loudoun Cnty. Public Schs., 418 F.3d 395, 401 (4th Cir. 2005) [holding that "non-attorney parents generally may not litigate the claims of their minor children in federal court"]; Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2nd Cir. 1990) [holding that "a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child"]; Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) [holding that a father, acting pro se, could not represent his daughters]. While the court in Myers noted that parents might be permitted to litigate their children's claims in the context of a supplemental security income appeal because of the unique policy considerations involved in such cases, see Myers, 418 F.3d at 401, no such unique considerations are involved in this case. An individual's right to represent himself or herself pro se in federal court is protected by statute. See 28 U.S.C. § 1654. But the right to litigate one's claims without an attorney "does not create a coordinate right to litigate for others." Myers, 418 F.3d at 400.
In two separate orders (ECF Nos. 8 and 17), Plaintiffs were informed that they may not litigate the claims of minor children in federal court, were directed to apprise this Court within thirty days as to whether they were able to obtain counsel, and were further advised that a failure to do so might result in dismissal of claims asserted on behalf of the minor children. Despite being granted two extensions of time (see ECF Nos. 13 and 17), Plaintiffs have failed to obtain counsel for the minor children and, after the second proper form order, have failed to update the court any further as to any efforts to do so. As such, Plaintiffs have presented nothing to show that they are attorneys admitted to practice in this Court and they have failed to obtain counsel to represent the minor children. Therefore, it is recommended that any claims Plaintiffs are attempting to assert on behalf of the minor children be dismissed. See, e.g., Gallo v. United States, 331 F.Supp.2d 446, 447 (E.D.Va. 2004); Brown v. Ortho Diagnostic Systems, Inc., 868 F. Supp. 168, 170-71 (E.D. Va. 1994).
Secondly, the Complaint filed in this case is subject to summary dismissal without service of process because it fails to state a claim which this Court may consider under its federal question jurisdiction, see 28 U.S.C. § 1331, or its diversity jurisdiction, see 28 U.S.C. § 1332. Plaintiffs have filed this action asserting federal question jurisdiction pursuant to § 1983, which "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 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); and 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). With their Complaint, Plaintiffs also filed a "Notice of Intent to File Federal Lawsuit" in which they state that they have filed this action under § 1983 (claiming violations of the Fourth and Fifth Amendments) and 18 U.S.C. § 242 for an unlawful violation of their constitutional and civil rights.
Although Plaintiffs reference 18 U.S.C. § 242, this is a criminal statue that does not give rise to civil liability or authorize a private right of action. See United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003)[finding that the District Court properly dismissed defendant's claim filed pursuant to 18 U.S.C. §§ 241 and 242 because he had no private right of action under either of those criminal statutes]; Wagner v. United States, 377 F.Supp.2d 505, 510-511 (D.S.C. 2005) [§ 241 is a criminal statute that provides no private cause of action].
Plaintiffs also assert claims pursuant to § 15-78-50 of the South Carolina Tort Claims Act (SCTCA); ECF No. 1-1 at 1; but only raise federal claims in their first cause of action. In their first cause of action, Plaintiffs assert a jumbled mix of claims for "Violation of Rights" in which Plaintiffs claim that their constitutional rights were violated and, additionally, that the Defendants violated certain South Carolina laws. The other causes of action (second cause of action for Defamation - Slander/Libel, third cause of action for Frivolous/Fraudulent Claim and False Reporting of Abuse and Neglect, and fourth cause of action for Malfeasance in Office) all allege claims under South Carolina law.
However, a violation of state law does not provide a basis for a claim under § 1983. Clark v. Link, 855 F.2d 156, 161-62 (4th Cir. 1988). Nor are Plaintiffs' claims that the Defendants' actions constituted negligence actionable under § 1983. See Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986).
In the first cause of action, Plaintiff Raymond Grant alleges that the Defendants violated his rights under the Fourth and Fifth Amendments by referencing his twenty-year old expunged criminal proceedings "to obtain false probable cause for the Complaint for Ex Parte Custody", which subjected him to double jeopardy. ECF No. 1 at 5-6. This allegation fails to state a federal claim. Under the Fifth Amendment to the United States Constitution, a person may not be twice put in jeopardy of life or limb for the same offense. In general terms, this language has been interpreted to bar prosecution in the following three situations:
1. Where a person would be tried for the same offense after an acquittal;See Benton v. Maryland, 395 U.S. 784 (1969); North Carolina v. Pearce, 395 U.S. 711, 716 (1969)[holding Double Jeopardy Clause imposes no limits on retrying defendant who has succeeded in getting first conviction set aside], overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Here, Raymond Grant has not asserted any facts to show that the civil family court proceeding involving his daughter and grandchildren (he has not alleged that he has legal custody or legal guardianship of the minors) constituted "double jeopardy" in violation of the Fifth Amendment. His double jeopardy claim is therefore subject to summary dismissal as Raymond Grant has not alleged any facts to indicate that was criminally prosecuted for the same offense after an acquittal or conviction or received (or would receive) more than one punishment for the same offense.
2. Where a person would be tried for the same offense after a conviction; or
3. Where a person would receive more than one punishment for the same offense.
Additionally "Plaintiff(s)" allege that they were denied due process and their rights under the Sixth Amendment because they were "not privy to the person or persons alleging the allegations." ECF No. 1 at 6. However, the Sixth Amendment right to confrontation of witnesses generally does not apply in civil cases. See Austin v. United States, 509 U.S. 602, 608 (1993) ["The protections provided by the Sixth Amendment are explicitly confined to 'criminal prosecutions.'"] (quotation omitted); Manta v. Mukasey, No. 04-74623, 263 F. App'x 626, 629 (9th Cir. Jan. 16, 2008)[Sixth Amendment right to confrontation of witnesses only applies in criminal cases]; but see Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016)[Sixth Amendment might apply in immigration removal hearings].
Plaintiffs are also asserting claims against SCDSS supervisory personnel (including Defendant Daphne Curry McDaniel, a SCDSS supervisor) based on a theory of supervisory liability. However, in order to proceed under § 1983, a plaintiff must affirmatively show that a defendant acted personally in the deprivation of their constitutional rights; Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); and when a complaint contains no personal allegations against a defendant, that defendant is properly dismissed. See Karafiat v. O'Mally, 54 F. App'x 192, 195 (6th Cir. 2002); Curtis v. Ozmint, C/A No. 3:10-3053-CMC-JRM, 2011 WL 635302, at *4 n. 5 (D.S.C. Jan. 5, 2011), adopted by, 2011 WL 601259 (D.S.C. Feb. 11, 2011); Whaley v. Hatcher, No. 1:08CV 125-01-MU, 2008 WL 1806124, at *1 (W.D.N.C. Apr.18, 2008). Here, Plaintiffs fail to specify what actions or inactions any supervisory personnel took against them, and a § 1983 claim for supervisory liability cannot rest on the doctrine of respondeat superior. Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999).
Although there is a limited exception to the prohibition against imposing liability on supervisory personnel in § 1983 cases under the doctrines of respondeat superior or vicarious liability, see Slakan v. Porter, 737 F.2d 368, 370-75 (4th Cir. 1984), the Slakan exception requires factual allegations showing a "pervasive and unreasonable risk of harm from some specified source ..." coupled with allegations showing that the supervisor's "corrective inaction amounts to deliberate indifference or 'tacit authorization of the offensive [practices].'" Slakan, 737 F.2d at 373; see Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994).
Moreover, the Fourth Circuit has held that social workers and child protective service workers are immune from liability when they are engaged in "activities ... that could be deemed prosecutorial." Vosburg v. Department of Soc. Servs., 884 F.2d 133, 135, 138 (4th Cir. 1989). This is because their discretion in initiating proceedings "might be distorted if their immunity from damages arising from that decision was less than complete." Id. at 136 (quoting Butz v. Economou, 438 U.S. 478, 515 (1978)). Therefore, the Defendant social workers are also immune from liability and thus subject to summary dismissal on this basis.
However, it is noted that prosecutorial activities include preparing and filing a removal petition, but do not include activities that are investigative or administrative in nature. Id. at 138; Vaughan v. Foltz, No. 2:16-CV-61-FL, 2017 WL 9480142, at *6 (E.D.N.C. May 8, 2017)[holding that social workers accused of using false statements to procure judicial orders and giving false testimony during judicial proceedings were entitled to absolute immunity]; Worlock v. Cty. of Cumberland, No. 4:14-CV-102-BO, 2014 WL 5761124, at *4 (E.D.N.C. Nov. 5, 2014) [finding that DSS workers who allegedly gave false testimony during a custody hearing were entitled to absolute immunity]. As is noted herein, infra, Plaintiffs were provided an opportunity to amend their Complaint to address pleading deficiencies that could possibly be cured by amendment, but failed to do so. See Order (Court Docket No. 7). .
Defendant Miles is entitled to summary dismissal because, as a guardian ad litem, she is not a state actor under § 1983 for purposes of Plaintiffs' claims. A number of courts have recognized that a child's guardian ad litem is closely analogous to a public defender because the responsibilities are to the child, not the state. Those courts have concluded, therefore, that a guardian ad litem is not a state actor for purposes of § 1983. See Kirtley v. Rainey, 326 F.3d 1088, 1092-96 (9th Cir. 2003); Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir.1986); Snyder v. Talbot, 836 F.Supp. 19, 24 (D.Me.1993); but see Thomas S. v. Morrow, 781 F.2d 367, 378-79 (4th Cir.1986)[guardian of a ward of the state acted under color of state law]. Even if Miles is a state actor, she would be entitled to absolute immunity from § 1983 claims for duties performed within the confines of her role as a guardian ad litem. See Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir. 1994) [("Even if [the guardian ad litem] lied to the judge in open court, she was still acting as the guardian, and is immune from § 1983 liability."]; Smith v. Smith, No. 7:07cv117, 2007 WL 3025097 (W.D.Va. Oct. 12, 2007).
Additionally, any request for monetary damages against the Defendant SCDSS and any of its employees (Defendants Reynolds, Delaney, and Curry) in their official capacities is barred by the Eleventh Amendment to the United States Constitution, which divests this court of jurisdiction to entertain a suit for damages brought against the State of South Carolina or its integral parts. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)[holding that claims against a state official for actions taken in an official capacity are tantamount to a claim against the state itself]. While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the States' Eleventh Amendment immunity in § 1983 cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979). Further, although a State may itself consent to a suit in a federal district court, Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 & n. 9 (1984), the State of South Carolina has not consented to such actions. To the contrary, the SCTCA expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e).
As for Plaintiffs claims asserted under South Carolina law, these claims should be dismissed if the above recommendations are adopted, as Federal Courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of "supplemental jurisdiction." See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have diversity 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, Plaintiffs have 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]. In order to maintain an action based upon diversity jurisdiction, complete diversity between the plaintiffs and defendants must exist at the time the complaint is filed. Martinez v. Duke Energy Corp., 130 F. App'x 629, 634 (4th Cir. 2005). Therefore, as Plaintiffs have asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over Plaintiffs' state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002)[affirming district court's dismissal of state law claims when no federal claims remained in the case]. Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) ["[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants"].
Finally, it should be noted that in their Complaint, Plaintiffs at times assert claims using the term "Plaintiff" or "Plaintiff(s)", such that it is unclear if the Plaintiff referred to for a particular claim is Tiana Grant, or Raymond Grant, or both. Additionally, Plaintiffs have generally asserted claims against the Defendants without identifying which of the Defendants performed the allegedly improper act, such that the Complaint generally fails to include sufficiently clear factual allegations against each of the Defendants. Thus, Plaintiffs' Complaint is subject to summary dismissal as it is in violation of the directive in Federal Rule of Civil Procedure 8(a) that pleadings shall contain "a short and plain statement" of the basis for the court's jurisdiction and of the basis for a plaintiff's claims against each defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) [requiring, in order to avoid dismissal, "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'"].
Recommendation
Plaintiffs Tiana Grant and Raymond Michael Grant, III were previously given notice that some of the above pleading deficiencies could possibly be corrected by factual amendment, see, e.g., Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4th Cir. April 28, 2017)[Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 1531633(4th Cir. May 25, 2017)[same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017)[same], and were given an opportunity to file an amended complaint. They failed to do so. Therefore, based on the foregoing, it is recommended that the Court dismiss Plaintiffs' Complaint with prejudice and without issuance and service of process.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge February 14, 2019
Charleston, South Carolina
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).