United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr. United States District Judge.
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. ECF No. 1.
FACTUAL AND PROCEDURAL BACKGROUND
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.
Magistrate Judge assigned to this action 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.
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.
Thus, this matter is ripe for the Court's review.
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).
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.
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. Thus, the Court will proceed upon
the basis of federal question jurisdiction.
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
Objection to Dismissal for Failure to State a Claim
objects to the Report's recommendation that his suit be
dismissed for ...