United States District Court, D. South Carolina, Greenville Division
Tonya R. Chapman, Plaintiff,
Sandra Day Hurley, Defendant.
Timothy M. Cain United States District Judge
proceeding pro se, filed this action pursuant to 42 U.S.C.
§ 1983. In accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02, D.S.C., this matter was referred
to a magistrate judge for pretrial handling. Before the court
is the magistrate judge’s Report and Recommendation
(“Report”), recommending that the court dismiss
Plaintiff’s action without prejudice and without
issuance and service of process. (ECF No. 12). Plaintiff was
advised of her right to file objections to the Report. (ECF
No. 12 at 4). Plaintiff has filed objections. (ECF No. 14).
magistrate judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
magistrate fudge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge’s conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
objections are mostly unspecific to the dispositive portions
of the Report. Plaintiff argues that she submitted several
documents concerning alleged unethical behavior that the
presiding judges in her prior action ignored. (ECF No. 14 at
1). She indicated that she filed a motion for contempt in
that action, which the magistrate judge denied. (ECF No. 14
at 2). These objections do not relate to the Report’s
recommendation concerning her claim for
objections, Plaintiff seeks to amend her complaint to convert
her claim for perjury into a claim for fraud, which the court
will construe as a motion to amend her pleadings.
Plaintiff’s motion to amend the complaint is denied as
to amend a pleading are governed by Federal Rule of Civil
Procedure 15(a). Rule 15(a)(2) provides that “a party
may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Under Rule 15, a court should deny a
motion to amend “only where it would be prejudicial,
there has been bad faith, or the amendment would be
futile.” Nourison Rug Corp. v. Parvizian, 535
F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v.
Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)).
Fed.R.Civ.P. 8(a), a pleading must “contain: . . . a
short and plain statement of the claim showing that the
pleader is entitled to relief; and . . . a demand for the
relief sought, which may include relief in the alternative or
different types of relief.” Although this court is
required to liberally construe pro se complaints, “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.” Martin v. Blinkley, No.
4:13-cv-1568-DCN, 2013 WL 5316345, at *2 (D.S.C. Sept. 20,
2013) (citations omitted). “[T]he complaint must
contain sufficient factual matter, accepted as true, to state
a claim that is plausible on its face.” Id. at
*3 (citations omitted).
has not proposed any amendment that would remedy the
deficiencies in her complaint. Her original complaint does
not provide any factual allegations, except to state that the
defendant “has committed perjury.” (ECF No. 1 at
3). She left the relief section of the complaint blank, and
the original complaint does not state any relief she seeks.
(ECF No. 1 at 4). Thus, her original complaint does not state
a cause of action for fraud.
construing Plaintiff’s objections, she appears to base
her perjury and fraud arguments on facts laid out in a motion
for contempt she filed in a prior action. See Chapman v.
Enterprise, Rent-a-Car Co., No. 7:15-cv-441-TMC at ECF
46 (D.S.C. filed January 30, 2015). In that motion, she
claimed that the defendant in this action committed perjury
to obtain an extension of time to file responses to discovery
requests. Id. The defendant in this case was the
attorney for the defendants in the prior case. In the motion
for an extension of time, the defendants indicated that they
received the plaintiff’s discovery request on May 18,
2015, but that they did not know when the requests were
served. Id. at ECF 40. The defendants sought an
extension of time “[d]ue to press of business.”
Id. The plaintiff filed a response stating that the
defendants had received the discovery request in April 2015.
Id. at ECF No. 41. The magistrate judge entered a
text order granting in part the motion for an extension of
time to file the responses to discovery. Id. at ECF
the magistrate judge had entered her text order, the
plaintiff filed a motion for contempt. Id. at ECF
No. 46. In her motion for contempt, she indicated that the
defendants committed perjury and that no more extensions of
time should be granted. Id. The defendants filed a
response in opposition, and asked the magistrate judge to
admonish the plaintiff for making such claims. Id.
at ECF No. 49. The magistrate judge entered a text order
denying the motion for contempt as unfounded. Id. at
ECF No. 52.
the current dispute, Plaintiff seeks to proceed on a claim of
fraud for this alleged misrepresentation. To prove fraud
under South Carolina law, Plaintiff would need to plead and
(1) a representation; (2) its falsity; (3) its materiality;
(4) either knowledge of its falsity or a reckless disregard
of its truth or falsity; (5) intent that the representation
be acted upon; (6) the hearer's ignorance of its falsity;
(7) the hearer's reliance on its truth; (8) the
hearer's right to rely thereon; and (9) the hearer's
consequent and proximate injury.
Ardis v. Cox, 431 S.E.2d 267, 269 (S.C. Ct. App.
1993). “A complaint is fatally defective if it fails to
allege all nine elements of fraud.” Id.
Plaintiff’s objections do not state any of the
elements, and her original complaint does not provide any
factual allegations or seek any relief. The court finds that
she is unable to pursue a cause of action for fraud because
she has not pled and cannot satisfy the requisite elements
based on these facts. Thus, the court denies the request to
amend her pleadings as futile.
court has thoroughly reviewed the Report and
Plaintiff’s objections and finds no reason to deviate
from the Report’s recommended disposition. Accordingly,
the court finds Plaintiff’s objections are overruled.
Based on the foregoing, the court adopts the Report (ECF No.
12) and incorporates it herein, and ...