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.
brought this Amended 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. 15. This matter is before the
court on Defendants' motion for summary judgment. ECF No.
39. Because Plaintiff is proceeding pro se, a Roseboro Order
was sent advising Plaintiff of the importance of a
dispositive motion and the need for Plaintiff to file an
adequate response. ECF No. 41. Plaintiff filed his response
in opposition and a supplement to his response. ECF Nos. 44,
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 January 22,
2019, the Magistrate Judge issued a Report recommending
summary judgment be granted. ECF No. 51. 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 January
31, 2019. ECF No. 54. Defendants filed a reply on February
14, 2019. ECF No. 55.
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. § 636(b).
Plaintiff's race discrimination claims, the Report
recommends summary judgment as Plaintiff has failed to put
forth any evidence Defendants discriminated against him based
on his race. ECF No. 51 at 5. The Report also recommends
summary judgment as to Plaintiff's Takings Clause claim,
because Plaintiff has not shown he ever actually possessed a
property interest and, if he did, he has not shown he
attempted to obtain compensation for his property under state
procedures. Id. at 7. Finally, the Report recommends
summary judgment on Plaintiff's ECOA claim because the
ECOA does not apply to Defendants. Id. at 9.
Plaintiff filed objections, arguing the District Court
allowed Plaintiff to file his ECOA and 2013 claims, and that
the Report “seem to overrule the District Judge
Orders” (errors in original). ECF No. 54. He argues
Defendants did not engage in discovery or produce any
witnesses, and contends summary judgment should be denied
“because defendants did not follow court or put up any
defense to the Plaintiff case and Plaintiff has shows [sic]
that there is genuine issue for trial, ” citing his
Amended Complaint. Id. at 2. He notes “a
Plaintiff may show evidence of discrimination through conduct
or statements by the Defendants, ” but only points to
the Amended Complaint and not any actual evidence supporting
his claims. Id. He also notes he never requested a
check or refund, but wanted his property. Id.
reply notes Plaintiff's Objections make only one
conclusory argument, lack citations to evidence in the
record, and do not specifically challenge any recommendation
made by the Magistrate Judge. ECF No. 55. They argue the
Report “was clearly correct, that Plaintiff has failed
to show otherwise, and that it should therefore be adopted in
its entirety.” Id. at 2.
court agrees Plaintiff has failed to put forth sufficient
evidence to survive summary judgment on his claims. While he
cites his Amended Complaint and attached exhibit as evidence
there is a “genuine issue for trial, ” a review
of the materials submitted establishes only that Plaintiff
had the high bid for the property and “want[ed] to keep
it.” ECF No. 15-1 at 4.
to the argument in his objections, Plaintiff has not
demonstrated racial discrimination, as he has put forth no
evidence, and nothing beyond conclusory statements in his
Amended Complaint, that he was discriminated against on the
basis of his race. Defendants have submitted evidence that
Shirley Tapp and David Adams did not “take any actions
at all that were in any way motivated by racial concerns,
” and the persons involved in the tax sale “do
not know nor [ ] require the race of bidders” during
the tax sale or when the tax sale is cancelled. ECF Nos. 39-2 at
¶ 5, 39-8 at ¶¶ 3-4.
as to the Takings Clause claim, Plaintiff has failed to put
forth evidence sufficient to survive summary judgment. It
does not appear he ever actually owned the real property.
Although he deposited funds for the winning bid, he admits he
never received a deed. ECF Nos. 45 at 2, 15 at ¶ 7. To
the extent winning the bid can show ownership of real
property, the court agrees Plaintiff has failed to show he
sought compensation through state procedures. In fact,
Defendants have shown they were prepared to refund him the
amount of his bid after the tax sale was cancelled. ECF No.
39-2 at ¶ 4. Plaintiff states Defendants “can pay
him” for the property, but refused to produce the
original bid receipt from the tax sale required to obtain the
refund. ECF No. 54 at 2.
ECOA claim fails because the ECOA does not apply to
Defendants, as they are not creditors who “regularly
extend, renew, or continue credit.” 15 U.S.C. §
1691a(e). Further, Plaintiff's claim is not one
recognized under the ECOA, which protects against
discrimination in loans and extending credit. Therefore, it
is inapplicable to this case.
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 the Report and Recommendation by reference in
this Order. Summary Judgment for Defendants is appropriate on
all claims. Defendants' ...