United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr. United States District Judge
Evans (“Plaintiff”), proceeding pro se
and in forma pauperis, filed this second complaint
claiming a violation of his constitutional rights pursuant to
42 U.S.C. § 1983. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case was
referred to a Magistrate Judge for review. The Magistrate
Judge assigned to this action prepared a thorough Report and
Recommendation (“Report”) and opines that
Plaintiff's second complaint should be dismissed without
prejudice such that he can bring his claims in the
appropriate jurisdiction. (ECF No. 94).
Court is charged with making a de novo determination
of those portions of the Report to which specific objections
are made, and the Court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983).
case has a long history before this Court as it was
originally filed on September 23, 2016. (ECF No. 1). The
Magistrate Judge's Report thoroughly and accurately
recites the factual and procedural background giving rise to
this action in detail. (ECF No. 94). Currently before the
Court for review is Plaintiff's second amended complaint.
(ECF No. 89). Plaintiff alleges Defendants violated his
constitutional rights by taking property belonging to his
mother's estate in an unlawful tax sale. (ECF No. 1). The
Magistrate Judge recommends dismissing Plaintiff's second
amended complaint without prejudice. (ECF No. 94).
This Court Lacks Jurisdiction over Plaintiff's
a Fourth Circuit ruling that the Tax Injunction Act bars this
Court from considering Plaintiff's claims (ECF No. 34),
Plaintiff continues to seek relief in this court for
Defendants' alleged unlawful tax sale of property within
his mother's estate. (ECF No.1, 41, 89). Although
Plaintiff has been granted leave to amend his complaint
twice, he still has not stated a claim upon which relief can
be granted because the Court still lacks jurisdiction over
his claims. “The district courts shall not enjoin,
suspend or restrain the assessment, levy or collection of any
tax under State law where a plain, speedy, and efficient
remedy may be had in the court of such State.” 28
U.S.C. § 1341. As the Magistrate Judge points out,
Plaintiff does have an adequate remedy in state court.
However, Plaintiff disagrees.
Objections, Plaintiff argues that the Magistrate Judge
incorrectly concluded that his claims are barred by the Tax
Injunction Act because his claims were for constitutional
violations. (ECF No. 97). While Plaintiff is correct that he
has brought this cause of action pursuant to 42 U.S.C. §
1983, the substance of Plaintiff's claim concerns an
“unlawful tax sale, ” and therefore, is governed
by the Tax Injunction Act. (ECF No. 97). In Lawyer v.
Hilton Head Public Service Dist. No. 1, the Fourth
Circuit Court of Appeals held that the Tax Injunction Act and
the comity doctrine precluded the district court from
exercising jurisdiction over Plaintiff's claims under 42
U.S.C. § 1983 when those claims involved alleged
unauthorized collections of real and personal property taxes.
Lawyer v. Hilton Head Public Service Dist. No. 1,
220 F.3d 298 (4th Cir. 2000).
Plaintiff argues he does not have an available state remedy
because he was denied leave to proceed in forma
pauperis in state court. (ECF No. 97). Plaintiff's
inability to get into to state court does not automatically
warrant review by the federal court. If the Court lacks
jurisdiction over Plaintiff's claims, the Court's
hands are tied. Therefore, the Court dismisses
Plaintiff's claims without prejudice such that he can
seek relief for his claims in the appropriate court.
Plaintiff's Claims against Defendant, Jefferson, are
has named Yolanda Jefferson as a Defendant; however,
Plaintiff fails to explain how Defendant Jefferson is an
agent of Sumter County such that she can be sued under 42
U.S.C. §1983. In the Report, the Magistrate Judge
recommends dismissing Plaintiff's claims against
Defendant Jefferson because the Magistrate Judge finds
Defendant Jefferson is not a person acting under the color of
state law for the purposes of §1983. (ECF No. 94). In
his Objections, Plaintiff argues that “Jefferson can be
construed as a state actor in this action” because
Defendant Jefferson was entangled with Defendant Richardson
and Sumter County. Plaintiff's example of Defendant
Jefferson's entanglement is that Defendant Jefferson made
statements to Plaintiff “on how closely she worked with
and know[s] Sumter County officials and she was going to take
the property.” (ECF No. 97).
Plaintiff's example still fails to establish how
Defendant Jefferson's conduct can be attributed to the
state. In Lugar v. Edmondson Oil Co., the Supreme
Court held that “the conduct that allegedly caused the
deprivation of a federal right must be fairly attributable to
the State” before an action can be considered to be
state action. Lugar v. Edmundson Oil Co., 457 U.S.
922, 937, 102 S.Ct. 2744, 2753 (1982). The Court established
a two-part test for determining when person's action can
be considered state action. “First the deprivation must
be caused by the exercise of some right or privilege created
by the state or by a rule of conduct imposed by the State or
by a person for whom the State is responsible…Second,
the party charged with the deprivation must be a person who
may fairly be said to be a state actor. This may be because
he is a state official, because he has acted together with or
has obtained significant aid from state officials, or because
his conduct is otherwise chargeable to the State.”
Id. In his Complaint and Objections, Plaintiff has
failed to demonstrate how Defendant Jefferson or her conduct
fits into any of the categories set forth in the two-part
test. (ECF No. 89, 97). Assuming Defendant Jefferson made the
statements alleged in Plaintiff's Objections, these
statements do not rise to the level of conduct contemplated
by the Supreme Court in Lugar to allow suit under
§ 1983. Additionally, Plaintiff argues that ...