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Evans v. Richardson

United States District Court, D. South Carolina, Columbia Division

January 25, 2017

Reginald Evans, Plaintiff,
v.
Carolina Richardson, Treasurer for Sumter County South Carolina, and Sumter County, South Carolina, Inc., Defendants.

          ORDER

          Joseph F. Anderson, Jr. United States District Judge.

         I. INTRODUCTION

         Reginald Evans (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action against Carolina Richardson, Treasurer for Sumter County South Carolina (“Richardson”), and Sumter County, South Carolina (“Sumter County”), (collectively “Defendants”) claiming a violation of his constitutional rights for Defendants' failure to void a tax sale held with regard to a house belonging to his mother's estate.[1] ECF No. 1.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On September 23, 2016, Plaintiff filed this action alleging Defendants violated his rights under Title VII of the Civil Rights Act as well as the Fifth and Fourteenth Amendments to the United States Constitution. ECF No. 1 at 1. In addition, Plaintiff moved for leave to proceed in forma pauperis under 28 U.S.C. § 1915, ECF No. 3, which was granted on October 4, 2016, by Magistrate Judge Shiva V. Hodges, ECF No. 10.

         The Magistrate Judge assigned to this action[2] prepared a thorough Report and Recommendation (“Report”) and opines that this Court should summarily dismiss this action without prejudice and without issuance and service of process. ECF No. 11. The Report sets forth in detail the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation as modified.[3]

         Plaintiff was advised of his right to object to the Report, which was entered on the docket on October 4, 2016. ECF Nos. 11-12. The Magistrate Judge gave Plaintiff until October 21, 2016, to file objections. Id. On October 5, 2016, the Court received Plaintiff's objections to the Report. ECF No. 14.[4] Thus, this matter is ripe for the Court's review.

         III. DISCUSSION

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (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 Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). In the absence of specific objections to the Report of the Magistrate Judge, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         Here, the Magistrate Judge recommended that Plaintiff's claim be summarily dismissed without prejudice and without issuance and service of process because he fails to state a plausible claim for relief against Defendants. ECF No. 11 at 1, 4, 7. Specifically, the Magistrate Judge noted, “The conclusory allegations in Plaintiff's complaint are insufficient to support his bare allegations of discrimination, and he therefore fails to state a viable civil rights action based on racial discrimination.” Id. at 4.

         Plaintiff filed this action pursuant to “Title VII of the Civil Rights Act, Fifth Amendment, and Fourteenth Amendments to the United States Constitution.” ECF No. 1 at 1. Furthermore, Plaintiff alleged that this Court has jurisdiction to hear his claims “pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, Fifth and Fourteenth Amendments to the United States Constitution.” ECF No. 1 at 2. However, Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 2000e-16 are inappropriate because they address employment discrimination issues- none of which are raised here. In addition, the Fifth Amendment applies to the federal government. In contrast, the Fourteenth Amendment may be applicable as an equal protection or due process claim raised through 42 U.S.C. § 1983.[5] Thus, the Court will proceed upon the basis of federal question jurisdiction.

         A. Objections

         Plaintiff makes four specific objections to the Report: Plaintiff asserts (1) his case should not be dismissed for failure to state a claim because he is a member of a protected class and unable to prove intent without discovery or an answer from Defendants; (2) the Report's citation to Bongam v. Action Toyota, Inc., 14 F. App'x 275 (4th Cir. 2001), is inappropriate because that case was presented to a jury; (3) this matter should not be dismissed due to Eleventh Amendment immunity because Defendants may consent to suit, injunctive relief is allowed against state officials, and Defendants may not be entitled to immunity as a county; and, lastly, (4) his temporary restraining order (“TRO”) request should not be denied as moot because, if not issued, he will suffer “un-revers able harm” and needs to prevent retaliatory acts against him. ECF No. 14. The Court will address each objection in turn.

         1. Objection to Dismissal for Failure to State a Claim

         Plaintiff objects to the Report's recommendation that his suit be dismissed for ...


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