Guess v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Thurmond Guess, Sr., ) C/A No.: 3:23-6408-CMC-SVH

)

Plaintiff, )

)

vs. )

) ORDER AND NOTICE

Richland County Administrator )

Leonardo Brown; Darrell Jackson, )

Sr.; Rose Ann English; Alfred T. )

Guess; and Marjorie Guess, )

)

Defendants. )

)

Thurmond Guess, Sr. (“Plaintiff”), proceeding pro se, filed this complaint

against Richland County Administrator Leonardo Brown, Darrell Jackson, Sr.,

Rose Ann English, Alfred T. Guess, and Marjorie Guess (“Defendants”).

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e)

(D.S.C.), the undersigned is authorized to review such complaints for relief and

submit findings and recommendations to the district judge. For the following

reasons, the undersigned recommends this matter be summarily dismissed.

I. Factual and Procedural Background

Plaintiff alleges that over 30 years ago, on March 10, 1990, Jackson,

Green, and English “made an unlawfully taken of the plaintiff property as an

heir and given it to Richland County, which is illegal and unlawful and false

Easement Right of Way Deed to Richland County.” [ECF No. 1 at 1–2]. Plaintiff

alleges his father was deceased when the easement was signed and filed. . at

2. He alleges Brown and Richland County refuse to “return the property back

to the plaintiff and heirs.” . at 2. He claims “Alfred Guess and Marjorie Guess

refuse to act and tell the plaintiff about this scam, and assisted the defendants

in this action.” . He brings causes of action under

, 403 U.S. 388 (1971),1

., 436 U.S. 658 (1978),2 and for violations of his Fifth and

Fourteenth Amendment rights.

Plaintiff has previously brought a case, ., C/A No.

3:23-2957-CMC (“ ”), with almost identical allegations.3 also

1 established that victims of a constitutional violation perpetuated by a

federal actor may sue the offender for damages in federal court despite the

absence of explicit statutory authorization for such suits.

2 held that municipalities cannot be held liable for alleged actions of

their employees on a respondeat superior theory. , 436 U.S. 691.

“Instead, it is when execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government as an entity is

responsible under § 1983.”

3 In addition to the reasons, discussed herein, this complaint is subject to

dismissal as redundant to the claims in . , No. 00-

6367, 2000 WL 1144623, at *1 (4th Cir. Aug. 14, 2000) (“Because district courts

are not required to entertain duplicative or redundant lawsuits, they may

dismiss such suits as frivolous pursuant to § 1915(e).”); , 976

F.2d 1158 (8th Cir. 1998) (“[D]istrict courts may dismiss a duplicative

complaint raising issues directly related to issues in another pending action

brought by the same party.”); ., 425 F.2d

1295, 1296 (5th Cir. 1970) (“The District Court clearly had the right to take

notice of its own files and records and it had no duty to grind the same corn a

second time. Once was sufficient.”).

included claims for alleged violations of the Fifth and Fourteenth

Amendments, which were construed as claims brought pursuant to § 1983.

Plaintiff’s complaint was dismissed for Plaintiff’s failure to set forth a viable

federal claim. Although Plaintiff did not enumerate a claim brought pursuant

to in his amended complaint in , he did mention the case in his

objections. [ECF Nos. 25, 31]. In , the Honorable Cameron McGowan

Currie, United States District Judge, found:

The court agrees with the Magistrate Judge the Amended

Complaint does not set forth a viable federal claim under § 1983 or

the other criminal statutes under which Plaintiff attempts to bring

claims. Plaintiff’s objections are overruled for the reasons stated in

the Report: he may not bring a civil action under a criminal

statute, Defendants other than Brown are not state actors, and he

fails to state a claim against Brown under § 1983. Claims under

are restricted to municipalities and not a single actor. After

reviewing 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. Plaintiff’s Amended

Complaint is hereby summarily dismissed without prejudice and

without issuance and service of process.

[ECF No. 33].

II. Discussion

A. Standard of Review

Plaintiff filed this complaint pursuant to 28 U.S.C. § 1915, which permits

an indigent litigant to commence an action in federal court without prepaying

the administrative costs of proceeding with the lawsuit. To protect against

possible abuses of this privilege, the statute allows a district court to dismiss

a case upon a finding that the action fails to state a claim on which relief may

be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A

finding of frivolity can be made where the complaint lacks an arguable basis

either in law or in fact. , 504 U.S. 25, 31 (1992). A claim

based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C.

§ 1915(e)(2)(B). , 490 U.S. 319, 327 (1989).

A complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Pro se

complaints are held to a less stringent standard than those drafted by

attorneys. , 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating

a pro se complaint, the plaintiff’s allegations are assumed to be true.

., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction

afforded to pro se pleadings means that if the court can reasonably read the

pleadings to state a valid claim on which the plaintiff could prevail, it should

do so. A federal court is charged with liberally construing a complaint filed by

a pro se litigant to allow the development of a potentially meritorious case.

, 551 U.S. 89, 94 (2007).

The requirement of liberal construction does not mean that the court can

ignore a clear failure in the pleading to allege facts that set forth a claim

currently cognizable in a federal district court. .,

901 F.2d 387, 390–91 (4th Cir. 1990). Although the court must liberally

construe a pro se complaint, the United States Supreme Court has made it

clear a plaintiff must do more than make conclusory statements to state a

claim. , 556 U.S. 662, 677‒78 (2009);

, 550 U.S. 544, 555 (2007). Rather, the complaint must contain

sufficient factual matter, accepted as true, to state a claim that is plausible on

its face, and the reviewing court need only accept as true the complaint’s

factual allegations, not its legal conclusions. , 556 U.S. at 678‒79.

B. Analysis

1. Claims pursuant to and

Plaintiff has not alleged any defendant is a federal actor. applies

only to federal officials. , 990 F.3d 774, 777–78 (4th Cir.

2021) (explaining how the Supreme Court’s decision in recognized an

implied cause of action against federal officers accused of violating a citizen's

constitutional rights). Therefore, Plaintiff’s Bivens claim is subject to summary

dismissal.

Although Plaintiff argues created § 1983 liability for

municipalities under certain circumstances, Plaintiff has not alleged those

circumstances are present in his case. Further, he has sued only individuals

and not a municipality. Therefore, Plaintiff has not shown that provides

a claim in this case.

2. Constitutional Claims

Although Plaintiff indicates he is suing for violations of his Fifth and

Fourteenth Amendment rights, all of the defendants except Brown are private

citizens who are not responsible for due process, nor subject to liability under

42 U.S.C. § 1983. , 457 U.S. 922, 940 (1982)

(finding purely private conduct is not actionable under § 1983). Therefore,

Plaintiff has failed to state a viable cause of action against Darrell Jackson,

Sr., Rose Ann English, Alfred T. Guess, and Marjorie Guess.

Although he sues Brown as the Richland County Administrator, Plaintiff

has not alleged that Brown denied him due process, as the easement was filed

in 1990, well before Brown was in the position. The Supreme Court explains

that “[b]ecause vicarious liability is inapplicable to and § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” , 556 U.S.

at 676; , 737 F.2d 368, 372–74 (4th Cir. 1984) (finding

officials may be held liable for the acts of their subordinates, if the official is

aware of a pervasive, unreasonable risk of harm from a specified source and

fails to take corrective action as a result of deliberate indifference or tacit

authorization).

Plaintiff alleges he informed Brown on February 15, 2022, at the

“Richland County meeting” that “this Easement Right-of Way Deed was a

scam.” [ECF No. 25 at 2 (errors in original)]. He further alleges “All of the

defendants agree to be in on this conspiracy.” /d. However, this is insufficient

to show Brown violated his constitutional rights. Therefore, Plaintiff also fails

to state a cause of action against Brown.

NOTICE CONCERNING AMENDMENT

Plaintiff may attempt to correct the defects in his complaint by filing an

amended complaint by February 9, 2024, along with any appropriate service

documents. Plaintiff is reminded an amended complaint replaces the original

complaint and should be complete in itself. See Young v. City of Mount Ranzier,

238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading

ordinarily supersedes the original and renders it of no legal effect.”) (citation

and internal quotation marks omitted). If Plaintiff files an amended complaint,

the undersigned will conduct screening of the amended complaint pursuant to

28 U.S.C. § 1915A. If Plaintiff fails to file an amended complaint or fails to

cure the deficiencies identified above, the undersigned will recommend to the

district court that the claims be dismissed without leave for further

amendment.

IT IS SO ORDERED.

pot fege

January 19, 2024 Shiva V. Hodges

Columbia, South Carolina United States Magistrate Judge