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Cole v. Montgomery

United States District Court, D. South Carolina

April 16, 2015

Carolyn Cole, Plaintiff,
v.
Gerald V. Montgomery; Carolina Health Care Services; East Coast Protective Services; Southeast Protection Services; Southeast Airport Services; Thomas Behan; The Montgomery-Davis Group; The Montgomery-Davis Group Properties; Rhonda Montgomery Davis; Stanley Montgomery; Oasis Mortgage; James Penniegraft; JoAnn Penniegraft Cheek; Mark Randolph, Esq.; Jennifer Dalton Watson; Option One Mortgage; Southeastern Title Agency, LLC; Stewart Title Guaranty Company; RBC Centura Bank; Investors Title Insurance Company; Duane Bryant, Esq.; J. Rufus Farrior, Esq.; Litton Loan Servicing; Washington Mutual Bank; Chase Bank; Armina Swittenberg, a/k/a Swittenberg and Associates; Argent Mortgage; Commonwealth Land Title Insurance Company; Attorney's Title Company, Div. of United General Tire; East Coast Hospitality Staffing; Vernessa Pertell; Town of Atlantic Beach; Jake Evans; Jospehine Isom; Charlene Taylor; Joe Montgomery; William Booker; Christopher Clagg; Charles Williams; Tracy Edge; Municipal Association of South Carolina; State Ethics Commission of South Carolina; Herbert Hayden; Jim Bagnall, Defendants.

REPORT AND RECOMMENDATION

KAYMANI D. WEST, Magistrate Judge.

This is a civil action filed by a pro se litigant requesting to proceed in forma pauperis. Pursuant to 28 U.S.C. §636(b)(1), and Local Civil Rule 73.02(B)(2)(e)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.

I. Factual and Procedural Background

In a 107-page Complaint with 20 separate counts including several captioned as alleged civil claims under federal statutes addressing identity-theft issues, 18 U.S.C. §§ 1028, 1738; fairtrade issues involving banks and lenders, 15 U.S.C. § 45; unfair debt collection activities, "15 U.S.C. § 45";[1] and civil-rights issues, 42 U.S.C. §§ 1983, 1985, 1986; as well as various claims that arguably are state-law-based causes of action for fraud, breach of contract, defamation of credit, slander of title, trespass to try title, South Carolina unfair trade practices, and conspiracy. ECF No. 1-1. Plaintiff names 44 Defendants. Some Defendants are non-South Carolina residents who allegedly engaged in fraudulent dealings with Plaintiff's former spouse, Defendant Gerald Montgomery, that involve allegedly jointly owned marital property. Other Defendants include South Carolina residents who were public officials allegedly involved in collusion and conspiracy to violate Plaintiff's federal constitutional rights in connection with Plaintiff's political activities in the Town of Atlantic Beach, South Carolina. Plaintiff and Defendant Montgomery's jointly held property and related financial issues are currently the subject matter of a long-pending divorce action in Orange County, Florida (Circuit Court Case No. 2006-DR-009815-O). ECF No. 1-5. According to Plaintiff's responses to certain questions on the official form she completed to request in forma pauperis status in this case, the parties were granted a divorce on April 23, 2009; however, through a bifurcated process, the parties' marital-related financial issues are still pending before that Florida court. See ECF Nos. 1-1 at 20; 21-1, 21-2. According to the Florida court's on-line docket, the most recent activity in the Florida divorce action was a May 20, 2014 order granting Plaintiff's then-attorney's motion to withdraw from representation and a January 9, 2015 Order of Reassignment/Recusal that apparently resulted in a new judge assignment in the case. See http://myclerk.myorangeclerk.com/CaseDetail.aspx?CaseID=1125632 (last consulted April 8, 2015). Many of Plaintiff's factual allegations, particularly insofar as Defendant Montgomery and his business associates in North Carolina and Georgia are concerned, involve procedural issues such as problematic discovery matters and involvement in questionable transactions involving property currently being considered in the Florida divorce action. E.g., ECF No. 1-1 at 24-27. Plaintiff labels her former husband's and his associates' activities connected to the divorce action as a "harassment campaign, " id. at 27, and states that "the only justice the [divorce] Court offers is equitable distribution." Id. at 30.

Plaintiff also alleges a complex scheme by Defendant Montgomery and numerous state actors connected to Atlantic Beach (Defendants Vernessa Pertell, Town of Atlantic Beach, Jake Evans, Jospehine Isom, Charlene Taylor, Joe Montgomery, William Booker, Charles Williams, Municipal Association of South Carolina, State Ethics Commission of South Carolina, Herbert Hayden, Jim Bagnall, and Christopher Clagg) to discredit and bankrupt Plaintiff so that she would be unable to exercise her constitutional rights to participate in Atlantic Beach politics or speak out against problems she allegedly experienced in Horry County, South Carolina beginning in 2009.[2] According to Plaintiff, there is also a pending civil action in state court in Horry County that involves certain claims arising from the Town of Atlantic Beach's alleged "failure to comply with [a] court-ordered settlement..." of a matter involving "a loan that was made to the Town [of Atlantic Beach]." Cole v. Town of Atl. Beach, Case No. 2014CP2601654. Publicly available on-line records show that Defendants Booker, Evans, Isom, Montgomery, and Taylor are all listed as defendants in that case. Although the available on-line records of that case disclose numerous filings by the parties and court orders, http://publicindex.sccourts.org/Horry/PublicIndex/CaseDetails.aspx?County=26&CourtAgency= 26003&Casenum=2014CP2601654&CaseType=V (last consulted April 8, 2015), the contents of such filings are not available for viewing.[3]

Plaintiff asks this court to award her damages and declaratory relief against the various Defendants. ECF No. 1-1 at 106-07.

II. Standard of Review

Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915. The review has been conducted in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).

The Complaint in this case was filed under 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i), (ii). Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).

This court is required to liberally construe pro se pleadings, Estelle v. Gamble, 429 U.S. at 97, holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980). The mandated liberal construction afforded pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a pleading to "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts 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). Even under this less stringent standard, however, the pro se Complaint under review in this case is subject to partial summary dismissal.

III. Discussion

A. Immune and Frivolously Named Parties (Defendants State Ethics Commission and Tracy Edge)

Initially, the Complaint should be partially summarily dismissed insofar as it seeks to recover relief from this federal court under any count from Defendant State Ethics Commission because any such claims are barred by the Eleventh Amendment to the United States Constitution. Defendant State Ethics Commission is an agency of the State of South Carolina, and, as such, it is not necessary for this Defendant to file an answer to Plaintiff's Complaint. See http://ethics.sc.gov/Pages/default.aspx (last consulted April 8, 2015). The State Ethics Commission is immune from suit under 42 U.S.C. § 1983 or any other federal claim made by Plaintiff because the Eleventh Amendment to the United States Constitution divests this court of jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts. The Eleventh Amendment provides: "The 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." See Alden v. Maine, 527 U.S. 706 (1999); Coll. Savs. Bank v. Fla. Prepaid Educ. Expense Bd., 527 U.S. 666 (1999); Coll. Savs. Bank v. Fla. Prepaid Educ. Expense Bd., 527 U.S. 627 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (although express language of Eleventh Amendment only forbids suits by citizens of other States against a State, Eleventh Amendment bars suits against a State filed by its own citizens); see Bellamy v. Borders, 727 F.Supp. 247, 248-50 & nn.2-3 (D.S.C. 1989); Coffin v. S.C. Dep't of Soc. Servs., 562 F.Supp. 579, 583-585 (D.S.C. 1983). Accordingly, Plaintiff's Complaint should be partially summarily dismissed to the extent that it seeks to hold Defendant State Ethics Commission liable for any relief in this court.

Additionally, the Complaint should be partially summarily dismissed insofar as Tracy Edge is named as a Defendant because Plaintiff does not allege any wrongdoing on his part. Close review of the entire Complaint discloses that Defendant Edge's name is not mentioned in the substantive factual allegations contained in the body of the Complaint and, as a result, there are no allegations from which any inference may be raised that he is liable for anything that Plaintiff asserts against other Defendants. As a result, the Complaint is frivolous and fails to state any plausible claims whatsoever against Defendant Edge. See Newkirk v. Cir. Ct. of City of Hampton, No. 3:14CV372-HEH, 2014 WL 4072212 (E.D. Va. Aug. 14, 2014) (complaint subject to summary dismissal when no factual allegations against named defendants within the body of the pleading) (citing Potter v. Clark, 497 F.2d 1206, 1207 ...


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