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noting that the “Moorish Nation” is not a recognized sovereign state, and that “persons claiming to be Moor or Moorish-American are not immune from the laws and rules imposed by the United States or the individual states”
Summary of this case from Richardson El v. Hutchens Law FirmOpinion
C/A: 2:19-3335-SAL-BM
03-30-2020
Vincent Demar Mack, Plaintiff, v. Wells Fargo Financial South Carolina, Inc.; U.S. Bank Trust, N.A. as Trustee; Mikell R. Scarborough; Bradford Meekin Stokes; Chad Wilson Burgess; Caroline Richardson Glenn; Gregory Thomas Whitley, Defendants
REPORT AND RECOMMENDATION
This is a civil action filed by the Plaintiff, Vincent Demar Mack, pro se. Plaintiff asserts claims regarding a state foreclosure action in Charleston County, South Carolina.
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 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].
Discussion
Plaintiff and Paula Vincent previously filed two actions concerning a state foreclosure action (2014-CP-1008624) against their Charleston County property. They first removed the state action in case number 2:18-1479-RMG-BM, which was remanded to state court. In their second action, case number 218-1489-RMG-BM, they attempted to assert constitutional claims as well as claims under the Truth in Lending Act and the Fair Debt Collection Practices Act, but failed to get their case into proper form such that the case was dismissed pursuant to Fed. R. Civ. P. 41(b). In the present case, Plaintiff asserts Fifth, Sixth, and Ninth Amendment claims pursuant to 42 U.S.C. § 1983 as well as claims under South Carolina law concerning incidents as to the same mortgage foreclosure action (2014-CP-1008624) in Charleston County. Complaint, ECF No. 1 at 4, Attachment to Complaint, ECF No. 1-1 at 1.
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970).
Paula Vincent is not a party to this action.
Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that the Defendants violated his constitutional rights by failing to answer his discovery demands in a state court case. He also claims that Defendant Mikell Scarborough, the Master In Equity for Charleston County, ordered the sale of his property without a proper investigation as to what entity owned both the note and mortgage. Additionally, Plaintiff alleges claims under South Carolina law including negligence, slander, breach of trust, unprofessional conduct, unfair practices, and violation of the South Carolina constitution. Plaintiff has also submitted a document, which he appears to have filed in the state action (2014-CP-1008624), titled "pendency as constructive notice SECTION 15-11-20", in which he identifies the property in question as 1604 Pineview Road in Charleston County. ECF No. 1-1 at 4. The relief requested by Plaintiff includes monetary damages, and that the state court "grant a new and impartial trial to void and vacate the court order(s) based on the established precedents of the stare decisis voiding the sale of my home......" ECF No. 1-1 at 3.
Review of the court records of Charleston County, South Carolina reveals that a Notice of Sale was signed by Judge Scarborough in January 2020. Thereafter, an Order for a Writ of Assistance was signed in February 2020. Plaintiff filed a Notice of Appeal in the state court action, which was denied. See Charleston County 9th Judicial Circuit Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10002&Casenum=2014CP1006824&CaseType=V&HKey=82119705379109114656754821161191075254801181227272879780431125711011952886810111072121119731081167311465.
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]. Further, 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.'"].
Plaintiff asserts that his Sixth Amendment rights have been violated because he was not allowed to face or confront witnesses or accusers in the state court action. ECF No. 1-1 at 1-2. However, the Sixth Amendment right to confrontation of witnesses generally does not apply in civil cases, including foreclosure cases. See U.S. Const. amend. VI, 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, 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]. Thus, Plaintiff's Sixth Amendment claim should be dismissed.
Plaintiff also alleges that his Ninth Amendment rights have been violated. ECF No. 1-1 at 1. However, the Ninth Amendment "has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation." Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) [rejecting Navy civilian engineer's Ninth Amendment claim arising out of allegedly improper investigation and discharge], cert. denied, 503 U.S. 951(1992); see also Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir. 1986)[rcjccting § 1983 claim based on the penumbra of the Ninth Amendment in the absence of some specific constitutional guarantee]. Thus, any claim under the Ninth Amendment should also be dismissed.
Plaintiff also alleges that his due process rights under the Fifth Amendment have been violated. ECF No. 1-1 at 1-2. However, any claims against Defendant Scarborough, the Master in Equity for Charleston County, are subject to summary dismissal as this Defendant is entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9, 12 (1991); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). This immunity extends to judges of courts of limited jurisdiction, such as municipal and magistrate court judges. Figueroa v. Blackburn, 208 F.3d 435, 441-43 (3d Cir. 2000) 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 v. Sparkman, 435 U.S. 349, 356-57 (1978). Judicial immunity is also 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. Further, the doctrine of absolute judicial immunity also precludes the award of injunctive relief against Defendant Scarborough. See 42 U.S.C. § 1983 ["[I]n any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."]. Therefore, Judge Scarborough is entitled to dismissal, as all of the actions complained of were taken in his judicial capacity.
To the extent that Plaintiff is attempting to bring a constitutional claim against Defendants Wells Fargo Financial South Carolina, Inc.; U.S. Bank Trust N.A. as Trustee (U.S. Bank); Bradford, Meekin Stokes; Chad Wilson Burgess; Carolina Richardson Glenn; and/or Gregory Thomas Whitley, Plaintiff has not alleged any facts to indicate that these private individuals and entities are state actors. Because the United States Constitution regulates only the government, not private parties, a litigant asserting a § 1983 claim that his constitutional rights have been violated must first establish that the challenged conduct constitutes "state action." See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and "the party charged with the [conduct] must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); see U. S. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir.1991). 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). There are no allegations here to suggest that the actions of Defendants Wells Fargo, U.S. Bank, Stokes, Burgess, Glenn, and/or Whitley were anything other than purely private conduct.
It appears that Defendants Stokes, Burgess, Glenn, and Whitley are all attorneys involved in the foreclosure action. ECF No. 1 at 4-5. An attorney, whether retained, court-appointed, or a public defender, does not act under color of state law. See Polk County 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."]; Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir.1980)[court-appointed attorney]; Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) [private attorney].
Plaintiff also asserts that he is "a sundry and free Moor on the land of [his] ancestor...." ECF No. 1-1 at 1. However, to the extent that Plaintiff is attempting to claim that he is exempt from foreclosure laws because he is a Moor, it must be noted that the "Moorish Nation" is not a recognized sovereign state, and that persons claiming to be Moor or Moorish-American are not immune from the laws and rules imposed by the United States or the individual states. See, e.g., Supreme-El v. Director, Dep't of Corrs., No. 3:14CV52, 2015 WL 1138246, at *17 (E.D. Va. Mar. 3, 2015)[noting that courts have consistently rejected the argument that state courts lack jurisdiction to prosecute Moorish-Americans]; Bond v. N.C. Dep't of Corr., No. 3:14-CV-379-PDW, 2014 WL 5509057, at *1 (W.D.N.C. Oct. 31, 2014)["courts have repeatedly rejected arguments...by individuals who claim that they are not subject to the laws of the individual States by virtue of their 'Moorish American' citizenship"]; Clay v. Missouri, No. 4:13CV1471CEJ, 2014 WL 260097, at *3 (E.D. Mo. Jan. 23, 2014)["Plaintiff's status as a Moorish-American citizen does not entitle him to violate state and federal laws without consequence."]; Bey v. Stumpf, 825 F. Supp. 2d 537, 558 (D. N.J. 2011)). "[A] litigant's reliance on [the Moorish Treaty of Peace and Friendship], for the purposes of a civil suit raising claims based on events that occurred within what is the United States' geographic territory is facially frivolous ... and that includes any claims related to real estate located with the United States, collection of mortgage payments, foreclosure or eviction proceedings."].
Plaintiff further claims that his civil liberties have been violated because the sale of the property has been made "without a proper investigation as to who owns both the alleged 'NOTE' and 'MORTGAGE'." ECF No. 1-1 at 1. As such, he may be attempting to assert a "split the note" argument, claiming that in order to have standing in a foreclosure case a plaintiff in a state court action must have acquired the mortgage. However, as the Fourth Circuit has noted:
South Carolina has long upheld "the familiar and uncontroverted proposition ... that the assignment of a note secured by a mortgage carries with it an assignment of the mortgage, but that the assignment of the mortgage alone does not carry with it an assignment of the note." Hahn v. Smith, 157 S.C. 157, 154 S.E. 112, 115 (1930); see also Ballon v. Young, 42 S.C. 170, 20 S.E. 84, 85 (1894) ("The transfer of a note carries with it a mortgage given to secure payment of such note.").Scheider v. Deutsche Bank Nat. Trust Co., 572 F. App'x 185, 190 (4th Cir. 2014); see also Carpenter v. Longan, 83 U.S. 271, 275 (1872)["All the authorities agree that the debt is the principal thing and the mortgage an accessory."]. Thus, to the extent the foreclosing party is the holder of the note, it is also the holder of the mortgage. Further, if Plaintiff is claiming that a Defendant is not the owner of the note and mortgage, but is merely the servicer, the servicer would still have standing to foreclose. See Bank of American, NA v. Draper, 746 S.E.2d 478, 482 (S.C. Ct. App. 2013)[Noting that numerous South Carolina Courts "have recognized the servicer of a loan to be a real party in interest ... [with] standing to foreclose on [a] mortgage"].
Further, to the extent the note was indorsed in blank, it may be enforced by the possessor of the note. See, e.g., Scheider v. Deutsche Bank Nat. Tr. Co., 572 F. App'x 185, 190 (4th Cir. 2014) (citing S.C. Code § 36-3-205(a))[a note with a blank indorsement "may be enforced by whoever possesses it" under South Carolina law].
To the extent that Plaintiff, as a loser in stale court, is attempting to appeal the results of the state court action by filing this federal lawsuit, the current action should be dismissed 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, 250(4th Cir. Jan. 17, 2020). To rule in favor of Plaintiff on claims filed in this action 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. Davani v. Virginia Dep't. of Transp., 434 F.3d 712, 719-720 (4th Cir. 2006); see 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, No. 16-1909, 2017 WL 360546 (4th Cir. Jan. 25, 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 License 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].
Alternatively, 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 the same property that is the subject matter of the underlying foreclosure action in state court, his claims are barred under the Younger doctrine, although the abstention principles established in Younger might not require dismissal of Plaintiff's claims 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)["causes 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)).
Finally, Plaintiff is also attempting to assert various state law claims (including negligence, fraud, slander, and breach of trust) in this lawsuit. However, 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). Plaintiff fails to state any federal claim. Of course, a district court may also have jurisdiction "where the matter in controversy exceeds the sum of 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, as all parties are citizens of South Carolina. See ECF No. 1 at 3-5. See also 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 Plaintiff has asserted no valid federal claim, and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over his 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"].
As noted above, Plaintiff asserts that he is a Moor. However, he lists his address as South Carolina. ECF No. 1 at 3.Thus, any claim any claim regarding his status as a Moor or a Moorish-American does not support diversity jurisdiction attaching in this case. See Smith ex rel. Bey v. Kelly, No. 12-CV-2319 (JS)(AKT), 2012 WL 1898944, at *2-3 (E.D.N.Y. May 24, 2012); see also Allah El v. Avesta Homes, LLC, 520 F. App'x 806 (11th Cir. 2013)[Plaintiffs' status as Moorish Americans does not render them diverse for purposes for jurisdiction absent allegations that plaintiffs were citizens of a different nation or that they resided in a state other than Florida].
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process.
Plaintiff is advised that this Report and Recommendation constitutes notice to him of material defects in his filings. See, e.g., Goode v. Central Va. Legal Aid Soc'y, 807 F.3d 619, 623-24 (4th Cir. 2015); 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]. Plaintiff's attention is also directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge March 30, 2020
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).