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Guess v. Richland County Treasurer

United States District Court, D. South Carolina, Columbia Division

January 21, 2019

Thurmond R. Guess, Sr., Plaintiff,
v.
Richland County Treasurer; David Adams, as Treasurer, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         The 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.[1] (ECF Nos. 45 & 46.) Having reviewed the record presented and the applicable law, the court finds the defendants' motion for summary judgment should be granted.

         BACKGROUND

         This 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[2] 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.

         On January 29, 2018, Plaintiff filed the current action against the defendants.[3] 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.)

         Plaintiff 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.)

         Also in 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.[4] (ECF No. 15 at 4.) Plaintiff seeks compensatory and punitive damages.

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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).

         In 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.

         The 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).

         B. Defendant's Motion

         1. Claims of Race Discrimination pursuant to 42 U.S.C. ...


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