The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:21-CV-9-BO
ROGER VANN SMITH, )
)
Plaintiff, )
)
) ORDER
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)
NEIL F. WIGGINS, Clerk of Superior Court, )
Gates County, )
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Defendant. )
This matter is before the Court on the Memorandum and Recommendation (M&R) of
United States Magistrate Judge Robert B. Jones, Jr. [DE 4]. Plaintiff has filed an objection to the
M&R [DE 6], and the matter is ripe for review. For the reasons discussed below, the Court
adopts the M&R in its entirety and plaintiff's complaint is dismissed for failure to state a claim.
BACKGROUND
On December 13, 1963, Mollie H. Welch retained Philip P. Godwin, Sr. for the
preparation of her estate. DE 5, 5. The will called for the co-executors to retain the Godwin Law
Firm to assist in the administration of Welch’s estate and gave each of Welch’s eight children, or
their heirs, a one-eighth interest in common in the estate. /d. Following Welch’s death on July
13, 1969, the executrix retained the Godwin Law Firm to assist with leasing the estate’s
farmland. /d. Plaintiff alleges that the Godwin Law Firm never brought any legal action to “quiet
title” but is attempting to partition sell part of Welch’s estate. /d. Plaintiff seeks to enjoin the
partition sale by defendant and asks for damages in excess of $75,000. Id. at 4-5.
DISCUSSION
A district court is required to review de novo those portions of an M&R to which a party
timely files specific objections or where there is plain error. 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 149-50 (1985). “[I]n the absence of a timely filed objection, a district court need
not conduct de novo review, but instead must only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Diamond vy. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation and citation omitted). The district court
is only required to make a de novo determination of those specific findings to which the plaintiff
has actually objected. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Here, plaintiff has
filed an objection, citing the history of the Civil Rights Act and asserting that “defendant’s failure
to dismiss the underlying case will irreparably harm the Welch estate’s ability to hold its
inheritable property holdings for its heirs apparent for their peacefully [sic] enjoyment, but for acts
of systematic racial discrimination by the plaintiffs” in the underlying case. DE 6.
Section 1982 of the Civil Rights Act of 1866 establishes the right “to inherit, purchase,
lease, sell, hold, and convey real and personal property” free of race discrimination. 42 U.S.C. §
1982. “To establish a claim under the statute, plaintiff must allege that (1) he is a racial minority;
(2) that defendant intended to discriminate on the basis of race; and (3) the discrimination
concerned activities listed in Section 1982, namely the inheritance, purchasing, leasing, selling,
holding, and conveyance of real and personal property.” Brown v. Winman, No. 5:15-CV-59-BO,
2017 U.S. Dist. LEXIS 33705, at *10 (E.D.N.C. Mar. 8, 2017) (citation omitted). Plaintiff, in his
objection, alleges racial discrimination on the part of defendant for failiag to dismiss 4 prior
lawsuit, but does not provide any factual support showing that defendant intentionally
discriminated on the basis of the race. Therefore, plaintiff has failed to plead sufficient facts
demonstrating a plausible claim that defendant intended to discriminate against him on the basis
of race, and plaintiff's complaint is dismissed. See Lewis v. Bent, No. 4:16-CV-79-FL, 2018 US.
Dist. LEXIS 150827, at *11 (E.D.N.C. Sept. 5, 2018) (finding that plaintiff's race discrimination
claims failed when the complaint only included “unsupported and conclusory allegations”);
Ashcroft v. Iqbal, 556 U.S. 662, 694 (2009) (holding that allegations of discriminatory that are
conclusory “are not entitled to be assumed true’) (internal quotations omitted); Bass v. DuPont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003), cert denied, 540 U.S. 940 (2003) (“[WJhile
a plaintiff is not charged with pleadings facts sufficient to prove [his] case, as an evidentiary matter,
in [his] complaint, a plaintiff is required to allege facts that support a claim for relief.”’).
CONCLUSION
The M&R of Judge Jones is ADOPTED. [DE 4]. Plaintiffs application to proceed in forma
pauperis is GRANTED and plaintiff's complaint is DISMISSED because plaintiff fails to plead
sufficient facts demonstrating a plausible claim. The Clerk is DIRECTED to close the case.
SO ORDERED, this the _/ day of April, 2021.
UNITED STATES DISTRICT JUDGE