United States District Court, D. South Carolina
ORDER REGARDING AMENDMENT OF COMPLAINT
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
plaintiff, Tommy Henderson, a self-represented federal
prisoner, brings this action pursuant to 28 U.S.C. §
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.).
Having reviewed the Complaint in accordance with applicable
law, the court finds this action is subject to summary
dismissal if Plaintiff does not amend the Complaint to cure
the deficiencies identified herein.
Factual and Procedural Background
the court notes that Plaintiff's Complaint lacks
sufficient factual matter to state a recognizable claim for
relief. Plaintiff indicates the court has jurisdiction over
this action pursuant to Bivens v. Six Unkown Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and two
United States Supreme Court cases that concern notifying
beneficiaries of trusts and notification for garnishment of
wages. (Compl., ECF No. 1 at 1.) Plaintiff purports to sue
Angela Gregory, whom Plaintiff lists as the South Carolina
Secretary of State,  and Plaintiff provides no other
information about her. (Id. at 1-2.) Plaintiff
indicates he sent Gregory a “claim of commercial lien
and affidavit” in 2017, but Gregory did not respond
within ninety days. (Id. at 3.) Plaintiff then sent
Gregory a “notice and demand” for copies of state
laws about Gregory's authority and her South Carolina Bar
number. (Id. at 4.) In early 2018, Plaintiff sent
Gregory a “notice” on the law of principal and
agent and, after she did not respond again, he sent her a
“notice of default.” (Id. at 5.)
Plaintiff asserts three causes of action-“unalienable
right to due process, ” “exceeding jurisdiction,
” and “fraud/prejudice”-and seeks an
injunction preventing Gregory “to not exceed
jurisdiction” and seeks damages. (Id. 3-5, 7.)
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. § 1915A and
the Prison Litigation Reform Act (“PLRA”), Pub.
L. No. 104-134, 110 Stat. 1321 (1996), which requires the
court to review a complaint filed by a prisoner that seeks
redress from a governmental entity or officer or employee of
a governmental entity. See McLean v. United States, 566 F.3d
391 (4th Cir. 2009). Section 1915A requires a district court
to dismiss the case upon a finding that the action is
frivolous, malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b).
court is required to liberally construe pro se complaints,
which are held to a less stringent standard than those
drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.
2016). Nonetheless, 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
cognizable in a federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see
also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining
pleading requirements under Rule 8 of the Federal Rules of
Civil Procedure for “all civil actions”).
court concludes Plaintiff fails to state a claim upon which
relief can be granted because the Complaint fails to identify
a legal right upon which Plaintiff could be entitled to
relief. Plaintiff's use of phrases like “due
process” and “fraud, ” without more, fails
to provide a sufficient basis to form a recognizable legal
cause of action. See Fed.R.Civ.P. 8 (requiring that a
pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief”);
Iqbal, 556 U.S. at 678 (stating Federal Rule of Civil
Procedure 8 does not require detailed factual allegations,
but it requires more than a plain accusation that the
defendant unlawfully harmed the plaintiff, devoid of factual
support). Also, Plaintiff fails to provide sufficient facts
about the named defendant, Angela Gregory, that would show
that Plaintiff has a right to recovery against her.
incorrectly identifies Gregory as the South Carolina
Secretary of State. To the extent Plaintiff asserts that
Gregory is an official in the office of the Secretary of
State, Plaintiff would have to bring his claims pursuant to
42 U.S.C. § 1983. A legal action under 42 U.S.C. § 1983
allows “a party who has been deprived of a federal
right under the color of state law to seek relief.”
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 707 (1999). To state a claim under § 1983, a
plaintiff must allege: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under the color of state law. West v. Atkins, 487 U.S.
42, 48 (1988). A plaintiff also must allege that the
named defendant caused the constitutional violation. See
Iqbal, 556 U.S. at 676 (providing that a plaintiff in a
§ 1983 action must plead that the defendant, through his
own individual actions, violated the Constitution); Wright v.
Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“In order
for an individual to be liable under § 1983, it must be
‘affirmatively shown that the official charged acted
personally in the deprivation of the plaintiff's
rights.' ”) (quoting Vinnedge v. Gibbs, 550 F.2d
926, 928 (4th Cir. 1977)).
only federal right Plaintiff references in the Complaint is
“due process.” To prevail on a procedural or
substantive due process claim pursuant to the Fourteenth
Amendment, a plaintiff must first demonstrate that he was
deprived of life, liberty, or property by governmental
action. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir.1997).
“To state a procedural due process violation, a
plaintiff must (1) identify a protected liberty or property
interest and (2) demonstrate deprivation of that interest
without due process of law.” Prieto v. Clarke, 780 F.3d
245, 248 (4th Cir. 2015); see also Snider Intern. Corp. v.
Town of Forest Heights, Md., 739 F.3d 140, 146 (4th Cir.
2014) (“[P]rocedural due process requires fair notice
of impending state action and an opportunity to be
heard.”) (citing Mathews, 424 U.S. at 333). On the
other hand, substantive due process “bars certain
arbitrary, wrongful government actions ‘regardless of
the fairness of the procedures used to implement them.'
” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (citing
Daniels v. Williams, 474 U.S. 327, 331 (1986)). To state a
substantive due process claim, a plaintiff must plausibly
allege facts showing “(1) that [he] had property or a
property interest; (2) that the state deprived [him] of this
property or property interest; and (3) that the state's
action falls so far beyond the outer limits of legitimate
governmental action that no process could cure the
deficiency.” Tri Cty. Paving, Inc. v. Ashe Cty., 281
F.3d 430, 440 (4th Cir. 2002). Here, Plaintiff fails to
identify a recognizable liberty or property interest of which
he has been deprived.
on the foregoing, Plaintiff's Complaint is subject to
summary dismissal pursuant to 28 U.S.C. § 1915A(b)(1)
for failure to state a claim upon which relief can be
granted. Plaintiff is hereby granted twenty-one (21) days
from the date this order is entered (plus three days for mail
time) to file an amended complaint pursuant to Federal Rule
of Civil Procedure 15(a) that corrects the deficiencies
identified above. In a contemporaneously issued order, the
court has provided Plaintiff with instructions to bring this
case into proper form for initial review and the issuance and
service of process. In that order are instructions to fill
out the standard pro se complaint form attached to the order.
Plaintiff should use the complaint form attached to that
order to ...