United States District Court, D. South Carolina, Columbia Division
Thurmond R. Guess, Sr., Plaintiff,
Richland County Treasurer; David Adams, as Treasurer, Defendants.
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Plaintiff's Complaint
alleging Defendants violated his Fifth and Fourteenth
Amendment rights, as well as the Equal Credit Opportunity
Act, 15 U.S.C. § 1691 (“ECOA”). ECF No. 1.
In accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 (B)(2) (D.S.C.), this matter was referred to
United States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation
(“Report”) on dispositive issues. On February 28,
2018, the Magistrate Judge issued a Report recommending that
this matter be summarily dismissed without prejudice and
without issuance and service of process. ECF No. 8. The
Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the
serious consequences if he failed to do so. Plaintiff filed
objections on March 8, 2018. ECF No. 11.
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. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
Report recommends Plaintiff's claims regarding the 2012
and 2013 tax sales be barred by res judicata, specifically
claim preclusion. ECF No. 8 at 5. In the alternative, the
Report recommends the claims regarding the 2013 tax sale be
dismissed because Plaintiff fails to allege he was deprived
of due process or equal protection under the Fourteenth
Amendment, was denied any type of credit by Defendants
violative of the ECOA, or that Defendants converted his
property without just compensation under the Fifth Amendment.
Id. at 5-6.
objections argue the claims regarding the 2012 and 2013 tax
sales could not be filed together because they were
“not ripe yet.” ECF No. 11. He asserts he brought
his first case which was dismissed without prejudice, then
Defendants “did the same thing one year later that
cause the new action to come upon this court.”
Id. Plaintiff also argues Defendants are not immune
from monetary damages. Plaintiff objects to the res judicata
bar, noting his previous action was dismissed without
prejudice “so they can be brought back.”
Id. at 2. Finally, Plaintiff argues Defendants
violated the ECOA because they noted “the property was
roads in a subdivision and that it was a lot of liability for
the plaintiff.” Id. At the end of his
objections, Plaintiff requests the court allow him to amend
his Complaint. Id.
court agrees with the Magistrate Judge that Plaintiff's
claims alleging Fifth and Fourteenth Amendment violations
relating to the 2012 tax sale are barred by res judicata.
However, the previous claim alleging violation of the ECOA
was dismissed without prejudice, as Plaintiff failed to
allege facts to support such a claim. Therefore, there is no
final judgment on the merits of the ECOA claim for purposes
of res judicata. Defendants were granted summary judgment on
the merits of the other claims regarding the 2012 tax sale,
and they were dismissed with prejudice. See C/A No.
3:15-657, ECF Nos. 19, 36. Thus, with the exception of the
ECOA claim, Plaintiff cannot amend his Complaint to allege
claims regarding the 2012 tax sale.
Plaintiff has requested leave to amend his Complaint, the
court will allow him to file an Amended Complaint regarding
the ECOA claim as to the 2012 tax sale and his claims as to
the 2013 tax sale within 28 days of the filing date of this
Order. Plaintiff is cautioned to address the points made in
the Report regarding the deficiencies of the claims.
de novo review of the record of this matter, the applicable
law, the Report and Recommendation of the Magistrate Judge,
and Plaintiff's objections, the court adopts and
incorporates in part the Report and Recommendation by
reference in this Order and dismisses the 2012 tax sale
claims, except for the ECOA claim. The court
declines to adopt the Report regarding the 2012 ECOA claim
and the 2013 tax sale claims, and grants Plaintiff's
request to amend his Complaint regarding such claims. Any
such Amended Complaint must be filed within 28 days of the
filing date of this Order. This matter is referred back to
the Magistrate Judge for further proceedings.
 Only one of Plaintiff's claims in
his previous case was dismissed without prejudice - the ECOA
claim. See C/A No. 3:15-657, ECF No. 19. The
remainder of Plaintiff's claims regarding the 2012 tax
sale were dismissed with prejudice as summary judgment was
granted to Defendants. Id. at ECF No. 36.
 Those claims, alleging Fifth and
Fourteenth Amendment violations, are dismissed with prejudice