Opinion
C. A. 3:21-39-MGL-SVH
07-16-2021
Angel Sheree' Tennyson, Plaintiff, v. Julie Ann Avin, for Mental Illness Recovery Center, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Angel Sheree' Tennyson (“Plaintiff”), proceeding pro se and in forma pauperis, filed this suit on January 6, 2021, against Julie Ann Avin (“Defendant”) of Mental Illness Recovery Center, Inc. (“MIRCI”). In her amended complaint, Plaintiff alleges Defendant violated state and federal law by discriminating and retaliating against Plaintiff, as well as by providing inadequate housing. [See ECF No. 9].
Defendant has informed the court that Plaintiff has misspelled her last name. [See ECF No. 22 at 1 n.1]. The undersigned uses the correct spelling of Defendant's name and directs the Clerk of Court to correct the spelling of Defendant's name in the caption.
This matter comes before the court on Defendant's motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, motion for a more definite statement pursuant to Fed.R.Civ.P. 12(e). [ECF No. 22]. Defendant's motion to dismiss having been fully briefed [see ECF Nos. 25, 26], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant in part and deny in part Defendant's motion.
I. Factual and Procedural Background
Based on the attachments to Plaintiff's amended complaint, MIRCI accepted Plaintiff into its program in May 2018, a program “designed to provide safe and affordable housing for individuals along with stable and supportive services . . . that assists residents in making the transition from homelessness to permanent housing.” [ECF No. 9-1 at 9]. On July 19, 2019, Plaintiff submitted a complaint to Defendant about the condition of the housing she received under this program, stating she had been complaining of and requesting fixes to problems “since my move in date.” [ECF No. 25-1 at 11].
The parties have submitted to the court evidence attached to Plaintiff's amended complaint, Defendant's motion to dismiss, and Plaintiff's response to Defendant's motion. “On a motion to dismiss courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546, 550 (D.S.C. 2008) (citations and emphasis omitted); see also Martineau v. Wier, C/A No. 3:16-2650-SAL, 2020 WL 5757520, at *3 (D.S.C. Sept. 9, 2020) (“A court may also consider documents attached to a defendant's motion to dismiss if the document is integral to and explicitly relied on in the complaint, provided the plaintiff does not challenge the authenticity of the document.”). Here, no party has challenged the authenticity of any documents submitted, and the undersigned considers the documents submitted that are integral to and explicitly relied on in the complaint, as reflected in background section above.
Plaintiff additionally submitted to the court a flash drive containing documents submitted to the court elsewhere, as well as pictures and a video of her apartment rented through MIRCI. [See ECF No. 14].
In September 2019, Plaintiff filed a complaint with the U.S. Department of Housing and Urban Development (“HUD”). [See ECF No. 9-1 at 14, see also ECF No. 22-1 (September 25, 2019 email from HUD to MIRCI)]. HUD informed Plaintiff to pursue MIRCI's internal procedure for addressing grievances. [See ECF No. 9-1 at 14].
Plaintiff then pursued relief from the South Carolina Department of Consumer Affairs (“DCA”). [See ECF No. 22-2 (October 18, 2019 DCA letter)]. The DCA referred Plaintiff's complaint to the South Carolina Human Affairs Commission (“SCHAC”). See id. Plaintiff claimed, in part, that MIRCI was engaged in certain “discriminatory housing practice[s].” [See ECF No. 9-1 at 11-12]. After investigating Plaintiffs claims, however, SCHAC determined that Plaintiff's claims were unsubstantiated and dismissed her complaint. [See ECF No. 9-1 at 11-12, see also ECF No. 22-3 (March 16, 2020 SCHAC written determination)].
Plaintiff additionally filed an action in October 2019 in the Richland County Magistrate's Court (“state court”) related to her residency with MIRCI. [See ECF No. 22-4]. In the state court complaint, Plaintiff asserted the following allegations:
This court may take judicial notice of Plaintiff's prior case. Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”); Mann v. Peoples First Nat'l Bank & Trust Co., 209 F.2d 570, 572 (4th Cir. 1954) (approving district court's taking judicial notice of prior suit with same parties).
We . . . have been a victim of living in an apartment that has several safety and health issues, retaliation, and discrimination. MIRCI has ignored my complaints of these issues made via email, phone, fax, and in person. After my failed attempts I reached out to HUD to get a resolution and immediately was retaliated against.Id. at 2. Plaintiff requested $7,500 in compensation and stated “MIRCI should assist me with getting housed (which includes locating, and help paying the fees associated with moving in)” and that “the parties involved with the false reporting should receive ninety days in jail.” Id.
Plaintiff additionally submitted the following to the state court:
Dear Justice,
This letter is in reference to a complaint that I am currently filing against the Mental Illness Recovery (MIRCI) for the following:
• Not repairing the unit that I currently reside in after communicating the issue on numerous occasions
• Discrimination when it came to resolving the issues
• Retaliating against me for filing the claim with HUD
• Falsely filing a report to [Department of Social Services (“DSS”)] regarding not having my son in school ....
I reside in a unit that is rented through MIRCI that was not properly inspected before I moved in May 2018. The concerns were emailed to the facility but there was no attempt to fix the issues. Even after complaining to the COC housing department no follow up was made .... I followed up again in August before filing the complaint with HUD on September 24th 2019. They did not respond [to] me but they called DSS on October 2nd 2019. The discrimination came in July of this year .... [A person] went on the news to complain about [] repair issues she's been having and they moved her within the allotted amount of time. Yes, she was an elder Caucasian female ....[ECF No. 22-4 at 4; see also ECF No. 22-5 at 3].
On January 29, 2020, the magistrate held a bench trial wherein Plaintiff testified and submitted documentation she contended supported the allegations contained in her complaint. [See ECF No. 22-5]. In the order dismissing the case without prejudice, the magistrate noted that “[o]ther than certain testimony regarding her desire to be ‘respected' by the Defendants, the Plaintiff did not present any evidence as to any alleged damages” and stated as follows:
After the Plaintiff rested her case, the Defendants made a motion asking that the case be dismissed because although the Plaintiff made several allegations in her Complaint and during her casein-chief related to, for example, improper maintenance, discrimination, and retaliation, she did not specifically allege any
causes of action or any violations of the law. Therefore, according to Defendants, because the Plaintiff did not state any causes of action or allege any violations of the law, she is not entitled to any form of relief. The Court agreed and granted the Defendants' motion on the record.Id. at 2, 4.
Plaintiff's case was primarily against “Julie Ann Alvin for MIRCI, ” which the court construed as two separate defendants. [ECF No. 22-5 at 2]. Additionally, “[t]he Plaintiff's Complaint also listed Jamecia Smith, Francis Pope Hewitt, and Diane Miller Fields as defendants.” Id.
On February 7, 2020, Plaintiff filed a Notice of Civil Appeal with the South Carolina Court of Common Pleas contending the following:
The appeal arises out of the order to dismiss the civil case under rule 16 on January 29, 2020. The court missed the fact a violation of 63-7-440, retaliation for filing a hud complaint, and section 2740-440 under the S.C. Residential Landlord Tenant Act was violated by Respondents.[ECF No. 22-6]. A hearing was held on Plaintiff's appeal on January 8, 2021, although she failed to appear. [See ECF No. 22-8]. During the hearing, Defendant moved to dismiss the appeal because Plaintiff failed to serve notice of her appeal on Defendant and failed to prosecute her case by failing to appear at the hearing. See id. The court granted the motion to dismiss on both grounds on the record and later issued a Form 4 Order reflecting its ruling. See id.
Two days before the hearing, on January 6, 2021, Plaintiff filed the instant action in this court. In her amended complaint, Plaintiff alleges Defendant failed to make the following “reasonable accommodations to the unit from May 29, 2018 until October 8, 2019”:
• Replace lock and install sound bell given for autistic minor so he would not run out the door.
• Fix flooring throughout the home so it would be livable, we wouldn't fall through, and so nails would not cut anyone walking through the home.
• MIRCI failed to make repairs to the AC in child's room which exacerbated his disability.[ECF No. 9 at 6-7 (spelling and punctuation modified)].
Plaintiff alleges the treatment she received was discriminatory “based on race and disability” in that “an older Caucasian woman in the program” reported similar treatment she received to “the news” and “was immediately assisted but we were not.” See id. at 6. Plaintiff alleges Defendant harassed her and retaliated against her, including calling DSS and filing a false report against her. Id. at 6-7.
Plaintiff has submitted to the court the referenced news stories. [See ECF No. 9-1 at 1-8, ECF No. 25-1 at 1-8].
Plaintiff further alleges as follows:
We were denied the benefit of enjoying a place to dwell and we endured violation(s) to our rights as African Americans/disabled family when it came to MIRCI Inc. following through with repairs/accommodations, while in the homeless transition program .... Due to accommodations not being met and an unlivable environment, we were forced out to find adequate living to suit our needs. The more we complain[ed] the more MIRCI came against us. MIRCI did not accommodate us with finding a unit that was livable nor did they assist us with hotel
accommodations until modifications were made or other permanent housing was found.Id. at 6-7 (spelling and punctuation modified).
As to the claims asserted, the “Particular of Violations” provides as follows:
a) TITLE VI AND VIII OF THE CIVIL RIGHTS ACT 1964
b) VIOLATED CODES UNDER SOUTH CAROLINA CHILDRENS CODE SECTION 63-7-430 AND 63-7-440
c) THE SOUTH CAROLINA FAIR HOUSING LAW MAKES IT ILLEGAL TO DISCRIMINATE IN HOUSING BECAUSE OF RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, PHYSICAL OR MENTAL HANDICAPS, OR FAMILIAL STATUS (FAMILIES WITH CHILDREN).
d) VIOLATION OF TITLE 24 OF THE HOUSING AND URBAN DEVELOPMENT CODES AS FOLLOWED: SUBCHAPTER A § 100.7 LIABILITY FOR DISCRIMINATORY HOUSING PRACTICES, SUBPART D § 100.2-PROHIBITION AGAINST DISCRIMINATION BECAUSE OF HANDICAP, AND SUBPART F- INTERFERENCE, COERCION OR INTIMIDATION.Id. at 8.
Liberally construing the above, Plaintiff asserts claims against Defendant for violations of (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VI”) and Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq., (“FHA”) (2) S.C. Code Ann. § 63-7-430 (civil action for bad faith reporting) and S.C. Code Ann. § 63-7-440 (knowingly making a false report), (3) South Carolina's Fair Housing Law, SC Code Ann. §§ 31-21-10 to -150, and (4) Title 24 of the Code of Federal Regulations, or regulations promulgated by HUD, including 24 C.F.R. § 100.7 (liability for discriminatory housing practices), 24 C.F.R. § 100.202 (general prohibitions against discrimination because of handicap), 24 C.F.R. § 100.400 (prohibited interference, coercion or intimidation). See id. These claims further can be grouped as follows: (1) claim brought pursuant to Title VI, which prohibits discrimination in certain programs or activities that receive federal funds, (2) housing claims brought pursuant to the FHA, including regulations promulgated by HUD, and under state law, and (3) state law claims brought pursuant to S.C. Code Ann. § 63-7-430 and S.C. Code Ann. § 63-7-440.
As indicated by Plaintiff, South Carolina law prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with it, because of race, color, religion, sex, familial status, or national origin, ” S.C. Code Ann. § 31-21-40(2), and prohibits discrimination “against a person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with the dwelling, because of a handicap of: (a) that person; (b) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or (c) any person associated with that person.” S.C. Code Ann. § 31-21-40(7).
As indicated above, Plaintiff, in her amended complaint, references the Civil Rights Act of 1964 in conjunction with Title VIII, omits certain statutes, and cites to incorrect regulations. [See ECF No. 9 at 8]. While the Court must construe pro se complaints liberally, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), it need not strain in “piec[ing] together causes of action from fragmentary factual recitations.” Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996). Here, however, Plaintiff has provided sufficient information to make clear which causes of action she seeks to assert, as listed above.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
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). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
B. Analysis
Defendant argues Plaintiff's claims should be dismissed with prejudice as barred by the doctrine of res judicata. As explained by the South Carolina Supreme Court, res judicata “bars plaintiffs from pursuing a later suit where the claim (1) was litigated or (2) could have been litigated.” Catawba Indian Nation v. State, 756 S.E.2d 900, 906 (S.C. 2014) (citation omitted); see also Roddey v. Wal-Mart Stores E., L.P., 811 S.E.2d 785, 787 (S.C. 2018). Further,
Res judicata bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties. Under the doctrine of res judicata, “[a] litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit.”Catawba Indian Nation, 756 S.E.2d at 906-07 (citing Plum Creek Dev. Co. v. City of Conway, 512 S.E.2d 106, 109 (S.C. 1999)).
More specifically, res judicata “may be applied if (1) the identities of the parties are the same as in the prior litigation, (2) the subject matter is the same as in the prior litigation, and (3) there was a prior adjudication of the issue by a court of competent jurisdiction.” Id. at 907 (citing Johnson v. Greenwood Mills, Inc., 452 S.E.2d 832, 833 (S.C. 1994); see also Judy v. Judy, 677 S.E.2d 213, 217 (S.C. Ct. App. 2009), aff'd, 712 S.E.2d 408 (S.C. 2011) (“Res judicata requires proof of three elements: 1) a final, valid judgment was entered on the merits of the first suit; 2) the parties to both suits are the same; and 3) the subsequent action involves matters properly included in the first action.”). However, “[t]he doctrine of res judicata is not an ‘ironclad bar' . . . to a later lawsuit.” Catawba Indian Nation, 756 S.E.2d at 907 (citations omitted).
It is undisputed that Plaintiff sued Defendant in state court alleging the same or similar allegations as in the instant suit. However, for res judicata to apply, there must have been a final judgment or adjudication of the merits. Plaintiff's case was dismissed for failure to assert any cause of action, and, therefore, the issue of whether Defendant violated, for example, Title VI or the FHA, was not considered or resolved. See, e.g., Lowe v. Clayton, 212 S.E.2d 582, 586 (S.C. 1975) (“The question then is whether the precise issue, now presented in this action, was determined in the prior action.”); Plott v. Justin Enterprises, 649 S.E.2d 92, 95 (S.C. Ct. App. 2007) (“The rule as to the conclusiveness of the prior adjudication has a different application where the prior and subsequent causes of action are identical and where the subsequent action is on a different cause of action. Although res judicata may apply even though the plaintiff in the first suit proceeded under a different legal theory, where the second suit is upon a different claim, the former judgment is conclusive only as to those issues actually determined.”) (citations and quotations omitted)).
Additionally, both Plaintiff's state court case and appeal were dismissed without prejudice. [See ECF No. 22-5, ECF No. 22-8 at 2 (citing S.C. Civ. R. P. 41(a) (“Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice”))]; see also, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (holding a dismissal without prejudice is not an adjudication upon the merits and does not have res judicata effect); McEachern v. Black, 496 S.E.2d 659, 663 (S.C. Ct. App. 1998) (“because the dismissal was made without prejudice to either party, res judicata does not apply and we need not address the other two elements”); Int'l Fid. Ins. Co. v. China Const. Am. (SC) Inc., 650 S.E.2d 677, 680 (S.C. Ct. App. 2007) (“a dismissal of a claim without prejudice is not an adjudication of the merits of the controversy and has no preclusive effect as a matter of law”).
Defendant appears to represent Plaintiff's appeal was dismissed pursuant to SCRCP 41(b) and thus with prejudice. [See ECF No. 22 at 10 & n.7]. However, there is no indication on the Form 4 that Plaintiff's appeal was dismissed pursuant to SCRCP 41(b), or otherwise with prejudice, and, instead, the form states the appeal was dismissed pursuant to SCRCP 41(a).
Accordingly, the undersigned recommends the district judge deny Defendant's motion to dismiss based on res judicata.
Defendant additionally argues Plaintiff's “causes of action . . . do not have facial plausibility as required under Rule 12(b)(6), Fed. R. Civ. P., .... Accordingly, Plaintiff's Complaint must be dismissed with prejudice.” [ECF No. 22 at 12, see also id. at 11 (“[Plaintiff's causes of action] are generalized statements that fail to state any elements of alleged violations and how particularly Defendant committed such violations.”) (emphasis in original)]. Defendant argues that although “Plaintiff does make certain allegations in her ‘Statement of the Claim' . . . it is not the Court's or Defendant's duty or obligation to piecemeal those allegations to fit within the purported claims Plaintiff attempts to assert.” Id. at 12.
Cases Defendant cites do not support the relief she seeks. For example, in Bey v. Lybrand, C/A No. 2:19-03297-BHH-MGB, 2020 WL 4455206, at *10 (D.S.C. July 8, 2020), report and recommendation adopted, C/A No. 2:19 3297-BHH, 2020 WL 4443769 (D.S.C. Aug. 3, 2020), the court held that it ”simply [could] not make sense” of Plaintiff's allegations, in that the allegations were “vague, incomprehensible, and seemingly irrelevant, ” holding “Plaintiff's proposed amended complaint fails to plead a coherent, plausible claim to relief.” However, such a situation is not presently before this court. Plaintiff is alleging, as she has done multiple times previously, that Defendant discriminated against her, in that a white person was granted the relief Plaintiff sought from Defendant, whereas Plaintiff was not; retaliated against her, by calling DSS and making a false report about her; and failed to provide her adequate housing, in part by failing to accommodate her child's disabilities.
More specifically, Plaintiff has alleged: (1) a claim pursuant to Title VI, (2) housing claims pursuant to the FHA, including regulations promulgated by HUD, and under state law, and (3) state law claims pursuant to S.C. Code Ann. § 63-7-430 and S.C. Code Ann. § 63-7-440. Although Defendant briefly mentions each of Plaintiff's causes of action, stating generally they fail to state a claim [see ECF No. 22 at 10-12], she does not specifically argue, or provide any support, as to how Plaintiff's claims fail except as follows: “Plaintiff fails to show how Defendant allegedly violated the two sections of the South Carolina Children's Code. S.C. Code Ann. § 63-7-430 requires, at least, certain family court determinations, and Plaintiff has not alleged any such determinations were made. S.C. Code Ann. § 63-7-440 is a criminal statute, ” id. at 11.
S.C. Code Ann. § 63-7-430 provides, in part, that “[i]f the family court determines . . . that a person has made a false report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report . . ., a person who was subject of the false report has a civil cause of action against the person who made the false report and is entitled to recover from the person who made the false report such relief as may be appropriate ....”). S.C. Code Ann. § 63-7-440 provides: “(A) It is unlawful to knowingly make a false report of abuse or neglect. (B) A person who violates subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than ninety days, or both.”).
In response, Plaintiff does not address Defendant's arguments concerning these statutes and instead states she is bringing her claims pursuant to “Title 6 Civil Rights (1964), Title 8 Civil Rights (1968), and violation under Title 24 of the Fair Housing, ” although she adds “which the list go[es] on.” [ECF No. 25 at 2]. Because Plaintiff does not dispute that a family court has not made a determination concerning Defendant nor has Defendant been found guilty of making a false report, and because Plaintiff cannot bring a civil action to enforce a criminal statute, the undersigned recommends dismissal of Plaintiff's claims brought pursuant to S.C. Code Ann. § 63-7-430 and S.C. Code Ann. § 63-7-440. See, e.g., Capps v. Oconee Cty. Sheriff's Off., C/A No. 8:18-1434-AMQ-KFM, 2018 WL 10035800, at *3 (D.S.C. June 22, 2018) (“The plaintiff cannot bring a civil action to enforce criminal statutes. ‘No citizen has an enforceable right to institute a criminal prosecution.' Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) (citing Linda R. v. Richard V., 410 U.S. 614, 619 (1973) (‘In American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.')).”), report and recommendation adopted, C/A No. 8:18-CV-01434-DCC, 2019 WL 3521740 (D.S.C. Aug. 2, 2019).
The undersigned expresses no opinion as to the viability of Plaintiff's remaining claims where Defendant offers no specific argument or case law in support of dismissing those claims and does not address the application of Plaintiff's allegations to the causes of action she has asserted. [See ECF No. 22 at 11-12 (Defendant arguing “Title VI is somewhat expansive, and Plaintiff must do more to plead any alleged violations of that Title, ” “there is no Title VIII in the Civil Rights Act of 1964, ” “there could not be a more-generic statement about South Carolina's Fair Housing Law and appears to have been copied and pasted directly from the South Carolina Human Affairs Commission website, ” and, finally, “although it appears that Plaintiff cited sections of the Code of Federal Regulations that actually exist, Plaintiff did not specifically detail how Defendant violated those regulations”) (emphasis in original)].
As to Defendant's motion, made alternatively, for a more definite statement, it appears that Defendant may have withdrawn this motion. [See ECF No. 26 at 2 n.2 (“At this point, and based on Plaintiff's Response, alternatively allowing Plaintiff an additional opportunity to more-definitely state her purported claims would be futile.”)]. However, to the extent Defendant has not, the undersigned recommends the district judge deny the motion. A motion for a more definite statement should only be granted if the defendant cannot frame a response to the complaint. See Hodgson v. Virginia Baptist Hospital, 482 F.2d 821 (4th Cir.1973); Fed.R.Civ.P. 12(e) (“A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.”).
Defendant argues “[a]s Plaintiff's Complaint stands at the moment, Defendant remains unsure which particular sections of federal and state law that Defendant is being accused of violating and/or what law purports to provide Plaintiff any entitlement to relief.” [ECF No. 22 at 13]. As discussed above, Plaintiff has provided sufficient information to determine which causes of action she is asserting, and her amended complaint is not so vague or ambiguous that Defendant cannot reasonably prepare a response. Accordingly, the undersigned recommends the district judge deny Defendant's motion for a more definite statement.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny in part and grant in part Defendant's motion to dismiss or, in the alternative, motion for more definite statement, dismissing Plaintiff's claims brought pursuant to S.C. Code Ann. § 63-7-430 and S.C. Code Ann. § 63-7440. [ECF No. 22].
IT IS SO RECOMMENDED.
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
901 Richland Street
Columbia, South Carolina 29201
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).