United States District Court, D. South Carolina
Laura Ann Toney, Personal Representative for the Estate of Maxie Lee Thomas, Jr., Plaintiff,
United States of America, Acting through the Farmers Home Administration, United States Department of Agriculture; Travis Windham, Sr.; Travis Windham Jr.; and T.L.T. Holdings, LLC, Defendants.
REPORT AND RECOMMENDATION
V. Hodges, United States Magistrate Judge
Ann Toney, as personal representative of Maxie Lee Thomas,
Jr., (“Plaintiff”), proceeding pro se, filed this
action against the United States of America, acting through
the Farmers Home Administration, United States Department of
Agriculture; Travis Windham, Sr.; Travis Windham Jr.; and TLT
Holdings, LLC. Plaintiff alleges the court has federal
question jurisdiction under 28 U.S.C. §§ 1331,
1343, and 1367. [ECF No. 1 at 2]. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to
review such complaints for relief and submit findings and
recommendations to the district judge. For the reasons that
follow, the undersigned recommends that the district judge
dismiss the complaint in this case without prejudice and
without issuance and service of process.
Factual and Procedural Background
has previously filed a complaint in this court alleging
virtually identical facts that is currently pending before
the court. See Toney v. Windham, C/A No.
3:16-3993-MBS (D.S.C. Dec. 27, 2016) (“Toney
I”). As in Toney I, Plaintiff alleges
she is the sister of the late Maxie Lee Thomas, Jr., and the
personal representative of his estate (“Thomas
estate”). [ECF No. 1 at 3]. Plaintiff alleges she is
the only heir to the Thomas estate and states she has an
interest in property located at 71 Broad Acres, Bishopville,
South Carolina (“Broad Acres”). Id.
Plaintiff claims defendants purchased Broad Acres in a
foreclosure sale on December 7, 2016, but did not receive a
deed to the property until December 22, 2016. Id. at
8. Plaintiff alleges defendants broke into the house on
December 19, 2016. Id. Plaintiff claims defendants
also cut down trees and stole her brother's personal
property. Id. Plaintiff alleges she was
“prevented from entering the premises without a
‘Notice to Vacate' and the opportunity to get her
brother's personal property.” Id.
Plaintiff claims she returned to Broad Acres on December 19,
2016, and discovered there was a person in the house.
Id. at 15. Plaintiff states that she called law
enforcement, and upon their arrival, she explained that she
was the personal representative of the Thomas estate, the
house was in foreclosure and had been sold, and defendants
had not received a deed to the property and had broken into
the premises. Id. Plaintiff alleges that on December
22, she discovered there was a no trespassing sign on the
front lawn. Id. at 15-16. Plaintiff claims she
“never received a Notice that the Defendants had
received a deed to the property or a Notice to vacate the
premises or time to get her brother's belongings out of
the house.” Id.
addition to the allegations of Toney I, Plaintiff
alleges Donald Tyler “withdrew from the case without
proper notice and Mr. Taylor Peace began to represent the
USDA without filing an Appearance in Court.”
Id. at 4-5. Plaintiff alleges “[t]he signature
of the Honorable Judge James does not match the true
signature of Judge James” and claims Tyler filed a
forged substitute of attorney. Id. at 4. Plaintiff
further contends the “deed executed by the Defendants
on December 22, 2016, does not match the signature of Judge
Stephen Bryan Doby.” Id. at 7.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se complaint. Pro se
complaints are held to a less stringent standard than those
drafted by attorneys, Erickson v. Pardus, 551 U.S.
89, 94 (2007), and a federal district court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case,
Hughes v. Rowe, 449 U.S. 5, 9 (1980). In evaluating
a pro se complaint, the plaintiff's allegations are
assumed to be true. Erickson, 551 U.S. at 94 (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining
pleading requirements under Fed.R.Civ.P. 8 for “all
civil actions”). 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; however, a
district court may not rewrite a complaint to include claims
that were never presented, Barnett v. Hargett, 174
F.3d 1128 (10th Cir. 1999), construct the plaintiff's
legal arguments for him, Small v. Endicott, 998 F.2d
411 (7th Cir. 1993), or “conjure up questions never
squarely presented” to the court, Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
even when the filing fee is paid, the court possesses the
inherent authority to ensure that a plaintiff has standing,
that federal jurisdiction exists, and that a case is not
frivolous. See Ross v. Baron, 493 F.
App'x 405, 406 (4th Cir. 2012); see also Mallard v.
United States Dist. Court for S. Dist. of Iowa, 490 U.S.
296, 307‒08 (1989) (“Section 1915(d) . . .
authorizes courts to dismiss a ‘frivolous or
malicious' action, but there is little doubt they would
have power to do so even in the absence of this statutory
Toney I, the undersigned finds the court does not
have subject matter jurisdiction over the allegations in
Plaintiff's complaint. Federal courts are courts of
limited jurisdiction, “constrained to exercise only the
authority conferred by Article III of the Constitution and
affirmatively granted by federal statute.” In re
Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.
1998). Accordingly, a federal court is required, sua
sponte, to determine if a valid basis for its
jurisdiction exists “and to dismiss the action if no
such ground appears.” Id. at 352; see
also Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Although the absence of subject matter jurisdiction may be
raised at any time during the case, determining jurisdiction
at the outset of the litigation is the most efficient
procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th
is no presumption that a federal court has jurisdiction over
a case, Pinkley, Inc. v. City of Frederick, MD., 191
F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege
facts essential to show jurisdiction in his pleadings.
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936); see also Dracos v. Hellenic Lines,
Ltd., 762 F.2d 348, 350 (4th Cir. 1985)
(“[P]laintiffs must affirmatively plead the
jurisdiction of the federal court.”). To this end,
Fed.R.Civ.P. 8(a)(1) requires that the complaint provide
“a short and plain statement of the grounds for the
court's jurisdiction[.]” When a complaint fails to
include “an affirmative pleading of a jurisdictional
basis, the federal court may find that it has jurisdiction if
the facts supporting jurisdiction have been clearly
pleaded.” Pinkley, 191 F.3d at 399 (citation
omitted). However, if the court, viewing the allegations in
the light most favorable to a plaintiff, finds insufficient
allegations in the pleadings, the court will lack subject
matter jurisdiction. Id; see also Holloway v.
Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53
(4th Cir. 2012) (finding when the alleged federal claim is
“‘so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid
of merit as not to involve a federal controversy,
'” then subject matter jurisdiction does not exist)
alleges the court has jurisdiction over her claims pursuant
to 28 U.S.C. §§ 1331, 1343, and 1367. “[A]
claim of federal question jurisdiction is to be resolved on
the basis of the allegations of the complaint itself.”
Burgess v. Charlottesville Sav. and Loan Ass'n,
477 F.2d 40, 43 (4th Cir. 1973). Therefore, a complaint must
“contain allegations ‘affirmatively and
distinctly' establishing federal grounds ‘not in
mere form, but in substance' and ‘not in mere
assertion, but in essence and effect.'”
Id. (citing Cuyahoga Co. v. Northern Ohio
Co., 252 U.S. 388, 397 (1920)). “[T]he mere
assertion in a pleading that the case is one involving the
construction or application of the federal laws does not
authorize the District Court to entertain the suit.”
Malone v. Gardner, 62 F.2d 15, 18 (4th Cir. 1932).
alleges defendants forged (1) a substitution of attorney and
(2) the Broad Acres deed in violation of 18 U.S.C. § 505
(prohibiting the forging of a judicial signature) and §
495 (prohibiting the act of forging a writing for the purpose
of obtaining or receiving a sum of money from the United
States or its officers or agents). [ECF No. 1 at 5-8].
Inasmuch as Plaintiff attempts to establish federal
jurisdiction in this civil lawsuit based on Title 18 of the
U.S. Code, which delineates crimes and criminal procedure,
she fails. The government enforces criminal statutes within
criminal cases, and individuals in civil cases cannot enforce
criminal statutes. Lopez v. Robinson, 914 F.2d 486,
494 (4th Cir. 1990) (“No citizen has an enforceable
right to institute a criminal prosecution.”). A
“private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another, ” so a
criminal statute that only establishes a crime and ...