United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
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.
Vonnetta Blackstock (“Plaintiff”) alleges that
the Hartsville Police Department violated her rights because
an unnamed police officer refused to file charges against
Walgreens for identity theft at Plaintiff's request. She
asserts that her claim is filed pursuant to 42 U.S.C. §
1981, Title VI of the Civil Rights Act, the International
Covenant on Civil and Political Rights (“ICCPR”),
the Federal Torts Claim Act, the Equal Protection Clause of
the 14th Amendment to the United States Constitution, and the
Articles of the Universal Declaration of Human Rights
(“UDHR”). ECF No. 1 at 8-9. Plaintiff asserts
that a member of the police department racially profiled her
and disregarded her complaints because she is black.
Id. at 6. Plaintiff also alleges that the officer
told her that he “was not going to file a police report
because there was nothing to report . . . .”
Id. at 7. Plaintiff requests $25, 000.00 in damages.
Id. at 4.
Standard of Review
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).
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).
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 which 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 summary dismissal.
settled that initial pleadings, whether submitted by
attorneys or by pro se litigants, must contain sufficient
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see Godbey v. Simmons, No.
1:11cv704 (TSE/TCB), 2014 WL 345648, at *4 (E.D. Va. Jan. 30,
2014) (“Whether filed by a pro se litigant or not,
‘claims brought in federal court are subject to the
generally applicable standards set forth in the Supreme
Court's entire Rule 8(a) jurisprudence, including
[Bell Atlantic Corp. v.] Twombly[, 550 U.S.
544 (2007)] and Iqbal.'”) (quoting from
Cook v. Howard, 484 F. App'x 805, 810 (4th Cir.
2012)). Even though a pro se plaintiff's pleadings are to
be liberally construed, a pro se complaint must still contain
sufficient facts “to raise a right to relief above the
speculative level” and “state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 555, 570 (citations omitted); see Slade v.
Hampton Roads Reg'l Jail, 407 F.3d 243, 248, 253-54
(4th Cir. 2005) (pro se pleading dismissal affirmed where
insufficient facts alleged to put defendants on notice of or
to support asserted due-process claim). The claims need not
contain “detailed factual allegations, ” but must
contain sufficient factual allegations to suggest the
required elements of a cause of action. Twombly, 550
U.S. at 555; see also Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009) (examining sufficiency of factual allegations under
Iqbal standards). “[A] formulaic recitation of
the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor will mere labels and
legal conclusions suffice. Id. Rule 8 of the Federal
Rules of Civil Procedure “demands more than an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. Thus, any
litigant, including a pro se litigant like Plaintiff, must
provide sufficient factual allegations supporting each
element of the kind of legal claim she seeks to pursue in
this court to allow this court to “draw the reasonable
inference that [Defendants are] liable for the misconduct
alleged.” Id.; see Dupont de Nemours &
Co., 324 F.3d 761, 764-65 (4th Cir. 2003) (a plaintiff
must allege facts that support each element of the claim
advanced); Leblow v. BAC Home Loans Servicing, LP,
No. 1:12-CV-00246-MR-DLH, 2013 WL 2317726, at *3 (W.D. N.C.
May 28, 2013) (same). As stated below, Plaintiff's
allegations are not sufficient to state plausible claims
under any of the statutes or treaties that she references as
the basis for her pleading.
Complaint allegations do not establish a plausible claim
under 42 U.S.C. § 1981 because they do not show that
Plaintiff was deprived of the benefits of a contractual
relationship as a result of her race as required to state a
prima facie claim under that statute. Domino's Pizza,
Inc. v. McDonald, 546 U.S. 470, 475-76, 479-80 (2006)
(“Any § 1981 claim, therefore, must initially
identify an impaired “contractual relationship, ”
§ 1981(b), under which the plaintiff has rights”);
Habash v. City of Salisbury, Md., 618 F.Supp.2d 434,
442 (D. Md. 2009) (discussing the elements of a § 1981
claim). Moreover, her equal-protection claim fails because it
is only properly brought in this court pursuant to 42 U.S.C.
§ 1983, which requires that the defendant in such an
action be a person. See Monell v. Dep't. of Soc.
Serv., 436 U.S. 658, 690 n.55 (1978) (noting that for
purposes of § 1983 a “person” includes
individuals and “bodies politic and corporate”).
It is settled that police departments do not qualify as
persons. See, e.g., Hammond v. Fernandes,
No. 2:12-1128-MGL-BHH, 2012 WL 3717184, at *8 (July 18,
2012), report and recommendation adopted, 2012 WL
3716432 (D.S.C. Aug. 28, 2012); see Milligan v. Drug
Enforcement Admin., No. 3:13-CV-02757-TLW, 2014 WL
897144, at *5 (D.S.C. Mar. 6, 2014) (citing Terrell v.
City of Harrisburg Police Dep't, 549 F.Supp.2d 671,
686 (M.D. Pa. 2008); Petaway v. City of New Haven Police
Dep't, 541 F.Supp.2d 504, 510 (D. Conn. 2008);
Buchanan v. Williams, 434 F.Supp.2d 521, 529 (M.D.
Tenn. 2006)). Additionally, Plaintiff does not allege that
she was treated differently from others who were similarly
situated, Morrison v. Garraghty, 239 F.3d 648, 654
(4th Cir. 2000) (quoting Nordlinger v. Hahn, 505
U.S. 1, 10 (1992)); see also Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002), and there is no basis on which
to hold the police department vicariously liable for the
actions of the unnamed police officer under either §
1981 or § 1983. See Jett v. Dallas Indep. School
Dist., 491 U.S. 701, 736 (1989) (no vicarious liability
under §§ 1981, 1983).
no plausible claim under Title VI of the Civil Rights Act of
1964 is stated because Plaintiff does not allege that
Defendant is federally funded or that she was prevented from
participation in a federally funded program. See Davis v.
City of N.Y., 959 F.Supp.2d 324, 364 (S.D.N.Y. 2013)
(“[P]laintiffs can prevail on their Title VI claim only
if they can show that the City is the recipient of federal
assistance, and does not merely benefit from that
assistance.”); see also Mack v. City of High
Springs, 486 F. App'x 3, 7 (11th Cir. 2012)
(affirming dismissal where the plaintiff fails to allege that
the defendant was federally funded or that he was denied
participation in a federally funded program). No plausible
FTCA claim is stated because there are no allegations showing
that Defendant is a federal official or employee. See
Simmons v. Himmelreich, 136 S.Ct. 1843, 1846 (2016)
(FTCA provides “jurisdiction over tort claims against
the United States for the acts of its employees . . .
.”). Finally, no plausible claims are stated under
either the ICCPR or the UDHR because neither treaty provides
a private right of action to individual citizens. See
Dutton v. Warden, FCI Estill, 37 F. App'x 51, 53
(4th Cir. 2002) (ICCPR); Moore v. Solomon, No.
1:16-CV-238-FDW, 2016 WL 6272406, at *3 (W.D. N.C. Oct. 25,
2016) (citing Sosa v. Alvarez-Machain, 542 U.S. 692,
734 (2004)), affd, 688 F. App'x 196 (4th Cir.
it is recommended that the district court dismiss the
Complaint in this case without prejudice. See United Mine
Workers v. Gibbs,383 U.S. 715 (1966); s ...