Opinion
4:22-3065-TLW-TER
09-22-2022
Kathy Reaves, a/k/a Kathy Juanita Reaves, Plaintiff, v. Richmond County Sheriff Office, Georgia Bureau of Investigations, Georgia Applicant Tracking System GAPS, Gemalto Thales, Clayton County Public Schools CCPS Clarke County School District CCSD, Marlboro County Sheriff Office, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a pro se litigant, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for her, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff has a number of pending actions and recently dismissed actions in this court; some of which involve the same factual allegations as the instant action. All of Plaintiff's actions are subject to review for potential summary dismissal as Plaintiff is proceeding pro se and in forma pauperis. The court reviews Plaintiff's complaints under 28 U.S.C. § 1915, which directs the court to summarily dismiss a complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, as well as when monetary relief is sought from a defendant immune from such relief.
Plaintiff alleges she is suing the agencies and a non-state actor as defendants under the Fourth and Fourteenth Amendments, the Fair Credit Reporting Act, the “Invasion of Privacy Act,and fraud pursuant to 18 U.S.C. 371.” (ECF No. 1 at 14). Plaintiff herself also identifies other cases she says are related, No. 4:22-cv-318, No. 4:22-cv-1323, and 4:22-cv-1399. (ECF No. 1 at 15). Plaintiff states her claims arise from a November 2021 incident and mentions Dickens and Foster, who Plaintiff is pursuing in another action. (ECF No. 1 at 1-2).
There is no federal “Invasion of Privacy Act.” Plaintiff does not cite which federal statute she is referring to. California has an “Invasion of Privacy Act”, Cal. Penal Code § 630, which is wholly inapplicable here.
18 U.S.C. § 371 criminalizes the act of conspiring to commit a crime against the United States; it does not create a cause of action for individuals alleging conspiracy. McMillan v. Ratner Companies, 2019 WL 3900204, at *2 (D.S.C. July 19, 2019), report and recommendation adopted, No. 3:19-CV-1698-CMC, 2019 WL 3890841 (D.S.C. Aug. 19, 2019)(“18 U.S.C. § 371 is a criminal statute and does not create a civil right of action”); Davis v. El Carbonero, LLC, 2022 WL 4244599, at *3 (E.D. Va. Aug. 4, 2022), report and recommendation adopted sub nom. 2022 WL 3573246 (E.D. Va. Aug. 19, 2022); Plaintiff has failed to state a claim as to this statute.
In No. 4:22-cv-318, Plaintiff already attempted to pursue these samedefendants based on the November 2021 incident and was warned(ECF No. 14, in No. 22-318) that her complaint in that action was subject to summary dismissal because those agencies were entitled to immunity and subject to summary dismissal. Plaintiff accordingly amended her complaint in that action, terminating those agency defendants and naming others, and the amended complaint was authorized for service only on some defendants and is currently proceeding with some represented defendants.
All these defendants are exactly the same, except for in the instant action “Marlboro County Sheriff Office” is not the same linguistically as “Marlboro County” in the prior action. However, the sheriff's office is a building not amenable to suit, so liberally construed Plaintiff would be pursuing the actual county itself, so all defendants are the same.
Plaintiff alleges Gemalto is a private company that takes fingerprints. (ECF No. 1 at 6). Gemalto, a nonstate actor, was also terminated by Plaintiff in No. 4:22-cv-318-TLW-TER by the Amended Complaint after Plaintiff was informed it was not clear from Plaintiff's allegations whether alleged private action was of sufficiently close nexus to be state action for § 1983 purposes. See also Guidetti v. Cnty of Greenville, 2011 WL 5024287 (D.S.C. Sept. 12, 2011).
To the extent Plaintiff seeks monetary damages, Defendant GBI is entitled to sovereign immunity. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”). A state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of Georgia has not consented to be sued in this case. Ga. Code Ann. § 50-21-23(b). This immunity extends to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001); Presnell v. Paulding Cnty., Ga., 454 Fed.Appx. 763, 766 (11th Cir. 2011). Thus, state agencies are entitled to immunity and GBI is subject to summary dismissal. Plaintiff also alleges GAPS is a state agency affiliated with GBI; GAPS would also be entitled to sovereign immunity for the same reasons. (ECF No. 1 at 5).
To the extent Plaintiff names two sheriff offices, these are buildings not amendable to suit. Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000)(unpublished opinion). To the extent liberally construed Plaintiff was attempting to name each county instead of a building, the counties of Richmond and Marlboro would be immune from suit as arms of the state as discussed above as to state agencies.
Plaintiff alleges that served Defendants in case number 4:22-cv-318-TLW-TER are filing a plethora of documents and have themselves not been able to produce the felony warrant. (ECF No. 1 at 6). To the extent Plaintiff repeatedly states no warrant has been produced by Defendants, it appears that public records filed with this court show an active felony warrant dated December 21, 2020, available for Plaintiff's viewing in the case Plaintiff herself references. Reaves v. Dickens, No. 4:22-cv-318-TLW-TER (ECF No. 81-1).
Plaintiff's allegations as to Clayton County Public Schools and Clarke County School Districtare that they did not give her a copy of the warrant used to deny her employment. (ECF No.1 at 7-8). Plaintiff vaguely and conclusory states her claims are under the FCRA. (ECF No. 1 at 8, 16-17). “To achieve its purpose, the FCRA places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies.” Wilson v. Wells Fargo Bank, N.A., No. 2:20-CV-2780-BHH-MHC, 2021 WL 2003524, at *3 (D.S.C. Apr. 30, 2021), report and recommendation adopted, 2021 WL 2003184 (D.S.C. May 19, 2021)(internal citations and quotations omitted). Plaintiff's allegations involve Defendant Clayton County Public Schools and Clarke County Public School District as a user of a background report. (ECF No. 1). Defendants are not a statutory reporter or furnisher of information inside those reports as defined by the FCRA but is a user of the report. See 15 U.S.C. § 1681m. Plaintiff here does not plead what type of FCRA claim she is pursuing, but conclusorily states that the FCRA has been violated. (ECF No. 1). Liberally construed, the conclusory allegations appear to invoke the statutory requirements underlying the “duties of users taking adverse actions on basis of information contained in consumer reports.” 15 U.S.C. § 1681m(a). Any such claims fail as a matter of law; there is no private right of action under the users statute. See Allen v. Kingwood Apartments, No. 1:19-CV-992, 2021 WL 4310577, at *3 (M.D. N.C. Sept. 22, 2021), report and recommendation adopted, 2021 WL 4462731 (M.D. N.C. Sept. 29, 2021), aff'd, No. 21-2108, 2022 WL 521725 (4th Cir. Feb. 22, 2022). Section 1681m(h)(8) states that, “[t]his section shall be enforced exclusively under section 1681s of this title by the Federal agencies and officials identified in that section.” 15 U.S.C. § 1681m(h)(8)(B). “Virtually every federal district court and the only federal court of appeals to interpret [Section] 1681m(h)(8) has found it to be clear and unambiguous: the word 'section' means 'section,' and thus no private right of action exists for violations of [S]ection 1681m in its entirety.” Allen, 2021 WL 4310577, at *3 (M.D. N.C. Sept. 22, 2021).
Further, as discussed below as to the rule against claim splitting and frivolous duplicate lawsuits, Clayton County Public Schools are also sued in No. 4:22-cv-1806-TLW-TER and No. 4:22-cv-1868-TLW-TER and Clarke County School District in No. 4:22-cv-1868-TLW-TER.
To the extent liberally construed Plaintiff is attempting a due process claim against these schools/district, Plaintiff's constitutional due process rights are only at issue when there is a deprivation of a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). It does not appear under the facts alleged that Plaintiff has pleaded a deprivation of a protected liberty interest in not being employed due to a felony background report. “A property interest requires more than a ‘unilateral expectation'”; instead, there must be a “legitimate claim of entitlement.” Biser v. Town of Bel Air, 991 F.2d 100, 104 (4th Cir.1993); see also Harmon v. Cumberland Cnty Bd. Of Educ., 186 F.Supp.3d 500, 510 (E.D. N.C. 2016)(finding as to due process concerns, plaintiff there did not possess a cognizable property interest in her teaching license); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972)(finding no property interest in university reemployment).
It is a waste of judicial resources to request Plaintiff name actual persons as defendants instead of agencies as the court already did this in No. 4:22-cv-318 and Plaintiff is pursuing some individual defendants, regarding this same incident in that court action. A “complaint that merely repeats pending or previously litigated claims may be considered abusive and a court may look to its own records to determine whether a pleading repeats prior claims.” Spencer v. Rhodes, 656 F.Supp. 458, 460 (E.D. N.C. 1987) (internal citations and quotations omitted). “Federal courts have a responsibility to assess the nature of the allegations presented in a civil action and determine whether the plaintiff's motive is to harass and vex the defendants or to seek redress for a legitimate claim.” Johnson v. Edlow, 37 F.Supp.2d 775, 776 (E.D. Va. 1999). When claims arose out of the same facts as the facts in an earlier-filed action, this court dismissed such a complaint where issues raised were directly related to issues in a pending action brought by the same Plaintiff. Davis v. Colleton Cty. Mem'l Libr., No. 2:17-CV-2948-PMD-MGB, 2018 WL 2170338, at *2 (D.S.C. Apr. 12, 2018), report and recommendation adopted, 2018 WL 2149309 (D.S.C. May 10, 2018), dismissed, 2018 WL 6333601 (4th Cir. July 23, 2018); see also, e.g., Reynolds v. Third Circuit Pub. Def. Office, No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted byn 2018 WL 1124592 (D.S.C. Mar. 1, 2018); “[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.” Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974 (D.S.C. July 28, 2015) (holding that “the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency”), affirmed by 631 Fed.Appx. 197 (4th Cir. February 4, 2016);Cox v. Cartledge, No. 3:13-481-TMC, 2013 WL 1401684 (D.S.C. March 13, 2013), adopted by 2013 WL 1401674 (D.S.C. April 8, 2013) (same); Sherron v. Perry, 2016 WL 407303, *2 (W.D. N.C. February 2, 2016) (same). “Because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per curiam).
As to much of Plaintiff's numerous actions concerning a Georgia warrant and South Carolina arrest, the Fourth Circuit states the rule against claim splitting “prohibits a plaintiff from prosecuting its case piecemeal and requires that all claims arising out of a single wrong be presented in one action.”Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 635 (4th Cir. 2015)(quoting Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 Fed.Appx. 256, 265 (4th Cir.2008)). The rule against claim splitting is a corollary to the principle of res judicata. Id. at 635. It is undisputed that it is within a district court's power dismiss a suit that is duplicative of another federal court suit. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
Plaintiff has failed to state a claim upon which relief can be granted and this action is subject to summary dismissal for all the foregoing reasons.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case pursuant to § 1915(e) with prejudice and without issuance and service of process.
See Michau v. Charleston Cty., 434 F.3d 725, 728 (4th Cir. 2006) (affirming the district court's dismissal of two complaints pursuant to § 1915(e)(2)(B), even though the plaintiff was not a prisoner, because the plaintiff was proceeding in forma pauperis).
In light of all of the foregoing, the undersigned recommends that the District Court decline to give Plaintiff an opportunity to amend. See Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 n.7 (D.S.C. Oct. 2, 2018); Young v. Santos, No. GLR-16-cv-1321, 2018 WL 1583557, at *6 (D. Md. Apr. 2, 2018); McSwain v. Jobs, No. 1:13-cv-00890, 2014 WL 12672619, at *1 (M.D. N.C. Jan. 6, 2014); see also Boyd v. South Carolina, No. 7:19-CV-00867-BHH-JDA, 2019 WL 2061495 (D.S.C. Mar. 28, 2019), report and recommendation adopted, 2019 WL 2057961 (D.S.C. May 9, 2019), aff'd, 773 Fed.Appx. 678 (4th Cir. 2019).
Plaintiff's attention is directed to the important notice on the next 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 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).