United States District Court, D. South Carolina, Columbia Division
Thurmond R. Guess, Sr., Plaintiff,
Richland County Treasurer; David Adams, as Treasurer, Defendants.
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
plaintiff, Thurmond R. Guess, Sr., a self-represented
litigant, filed this civil rights action in forma
pauperis under 28 U.S.C. § 1915 and § 1915A.
This matter is before the court pursuant to 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report
and Recommendation on the defendants' motion for summary
judgment. (ECF No. 39.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Plaintiff of the summary judgment and dismissal
procedures and the possible consequences if he failed to
respond adequately to the defendants' motion. (ECF No.
41.) Plaintiff filed a response in opposition to the
motion. (ECF Nos. 45 & 46.) Having reviewed
the record presented and the applicable law, the court finds
the defendants' motion for summary judgment should be
dispute arises from Plaintiff's winning bids for real
property at two Richland County tax sales in 2012 and 2013.
Plaintiff previously filed suit against Defendant David Adams
in this court in 2015 over the 2012 tax sale. See Guess
v. Adams, C/A No. 3:15-cv-657-CMC-PJG. In that case,
Plaintiff alleged that he was the highest bidder at a county
tax sale on December 3, 2012, but that Richland County
Treasurer David Adams canceled or voided the sale. Plaintiff
alleged the defendants' actions were discriminatory due
to Plaintiff's race, and he sought damages and injunctive
relief pursuant to 42 U.S.C. § 1983 and The Equal Credit
Opportunity Act (“ECOA”), 15 U.S.C. §§
1691, et seq. The court granted summary judgment in
the defendants' favor, finding Plaintiff forecasted no
admissible evidence from which a reasonable factfinder could
infer intentional discrimination by the defendants based on
Plaintiff's race, that Plaintiff was treated differently
from other similarly situated bidders, or that the
defendants' proffered reason for voiding the tax sale was
pretextual. All of Plaintiff's claims were dismissed with
prejudice, except for Plaintiff's ECOA claim, which was
dismissed without prejudice.
January 29, 2018, Plaintiff filed the current action against
the defendants. In the original complaint, Plaintiff
raised claims concerning the 2012 and 2013 tax sales pursuant
to ECOA and 42 U.S.C. § 1983, asserting violations of
the Fifth Amendment's Takings Clause and Fourteenth
Amendment's Due Process and Equal Protection Clauses.
(Compl., ECF No. 1 at 2-3.) The assigned magistrate judge
recommended the complaint be summarily dismissed on res
judicata grounds or, in the alternative, for failure to
state a claim upon which relief can be granted. (ECF No. 8.)
The assigned district judge adopted the recommendation in
part, finding that Plaintiff's § 1983 claims
regarding the 2012 tax sale were barred by res
judicata, and providing Plaintiff the opportunity to
file an amended complaint as to his ECOA claim stemming from
the 2012 tax sale and as to all of his claims stemming from
the 2013 tax sale. (ECF No. 13.)
filed an Amended Complaint that addresses only the 2013 tax
sale. (Am. Compl., ECF No. 15.) Plaintiff now alleges that on
December 9, 2013, Plaintiff was the highest bidder for a
piece of real property at a Richland County tax sale. (Am.
Compl. ¶ 7, ECF No. 1 at 2.) Plaintiff claims the
defendants told him he would receive a deed to the property
if the original owners did not redeem the property.
(Id.) After one year, the property owners did not
redeem the property, but the defendants canceled the sale
anyway. (Id.) Plaintiff alleges Adams instructed
Shirley Tapp to discriminate against him. (Id.
¶ 11.) Plaintiff also alleges Tapp called Plaintiff to
tell him that because of Plaintiff's disability, he may
not be able to take care of the property, and also that
Richland County would take the property from Plaintiff if
Plaintiff agreed. (Id. ¶ 13.) Plaintiff further
claims the defendants “awarded the property or
contract” to individuals who are outside of
Plaintiff's protected class, and that the defendants took
Plaintiff's property and illegally transferred it to
another party. (Id. ¶ 19, ECF No. 15 at 2-3.)
the Amended Complaint, Plaintiff raises more causes of action
than the original complaint. In addition to reasserting his
claims pursuant to the ECOA and § 1983, asserting
violations of the Fifth Amendment's Takings Clause and
Fourteenth Amendment's Equal Protection Clause, Plaintiff
also raises claims that the defendants discriminated against
him pursuant to 42 U.S.C. §§ 1981 and
1982. (ECF No. 15 at 4.) Plaintiff seeks
compensatory and punitive damages.
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in favor of the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
moving party has the burden of proving that summary judgment
is appropriate. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at
322. Further, while the federal court is charged with
liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially
meritorious case, see, e.g., Erickson
v. Pardus, 551 U.S. 89 (2007), the requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleadings to allege facts which set
forth a federal claim, nor can the court assume the existence
of a genuine issue of material fact where none exists.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).
Claims of Race Discrimination pursuant to 42 U.S.C.