Petition for Writ of Certiorari — Brandy V. Harris, Petitioner v. Britney May, et al.

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FILED: October 11,2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1418

(0:18-cv-03499-MGL)

BRANDY V. HARRIS

Plaintiff - Appellant

v.

BRITNEY MAY; ANDRES MALDONADO; CHRISTOPHER PRICE;

CAMERON KIRBY; SEAN SERCU; WILLIAM WATSON; BRANDON

AVIDON; ANTOINE LOGAN; JANE MODLA, Judge; PETER LENZI; PAULA

BROWN, Prosecutor; MUNICIPAL COURT ROCK HILL S.C., 120 E. Black St.

29730; KENNETH MARTIN; DANIELS SHEALY; KEENA MCCROREY;

JUSTIN SPADER; LEWIS RAYMES; KENYATTA TRIPP; SCOTT CRIBB;

OFFICER MURPHY; INVESTIGATOR OFFICER WELCH; SUPERVISOR

OFFICER BREEDEN; SUPERVISOR OFFICER HUMPHRIES

Defendants - Appellees

and

ROCK HILL MUNICIPAL COURT, 120 East Black, Rock Hill, South Carolina

29730

Defendant

ORDER

The court denies the petition for rehearing.

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FILED: August 30, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1418

(0:18-cv-03499-MGL)

BRANDY V. HARRIS

Plaintiff - Appellant

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v.

BRITNEY MAY; ANDRES MALDONADO; CHRISTOPHER PRICE;

CAMERON KIRBY; SEAN SERCU; WILLIAM WATSON; BRANDON

AVIDON; ANTOINE LOGAN; JANE MODLA, Judge; PETER LENZI; PAULA

BROWN, Prosecutor; MUNICIPAL COURT ROCK HILL S.C., 120 E. Black St.

29730; KENNETH MARTIN; DANIELS SHEALY; KEENA MCCROREY;

JUSTIN SPADER; LEWIS RAYMES; KENYATTA TRIPP; SCOTT CRIBB;

OFFICER MURPHY; INVESTIGATOR OFFICER WELCH; SUPERVISOR

OFFICER BREEDEN; SUPERVISOR OFFICER HUMPHRIES

Defendants - Appellees

and

ROCK HILL MUNICIPAL COURT, 120 East Black, Rock Hill, South Carolina

29730

Defendant

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Affirmed by unpublished per curiam opinion.

Brandy V. Harris, Appellant Pro Se.

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Unpublished Opinions are not binding precedent in this circuit.

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PER CURIAM:

Brandy V. Harris appeals the district court’s order accepting the recommendation .

of the magistrate judge and dismissing his civil complaint with prejudice for failure to state

a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm

for the reasons stated by the district court. Harris v. May, No. 0:18-cv-03499-MGL (D.S.C.

Apr. 10, 2019). We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

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decisional process.

AFFIRMED

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\

AO 450 (SCD 04/2010) Judgment in a Civil Action

United States District Court

for the

District of South Carolina

Brandy V. Harris, also known as Brandy Vernon

Harris,Plaintiff

v.

Britney May; Andres Maldonado; Christopher Price;

Cameron Kirby; Sean Sercu; William Watson;

Brandon Avidon; Antoine Logan; Jane Modla,

Judge; Peter Lenzi; Paula Brown, Prosecutor,

Municipal Court Rock Hill S.C., 120 E. Black St.

29730; Kenneth Martin; Daniels Shealy; Keena

Mccrorey; Justin Spader; Lewis Raymes; Kenyatta

Tripp; Scott Cribb; Officer Murphy; Investigator

Officer Welch; Supervisor Officer Breeden;

Supervisor Officer Humphries,

Defendants

Civil Action No.

0:18-cv-03499-MGL

)

)

)

)

)

JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

□ the plaintiff (name)

recover from the defendant (name)

the amount of_

which includes prejudgment interest at the rate of

%, plus postjudgment interest at the rate of

costs.

_dollars ($__ ),

%, along with

The plaintiff, Brandy V. Harris, also known as Brandy Vernon Harris, shall take nothing of the defendants, Britney

May; Andres Maldonado; Christopher Price; Cameron Kirby; Sean Sercu; William Watson; Brandon Avidon; Antoine

Logan; Jane Modla, Judge-, Peter Lenzi; Paula Brown, Prosecutor, Municipal Court Rock Hill S.C., 120 E. Black St.

29730\ Kenneth Martin; Daniels Shealy; Keena Mccrorey; Justin Spader; Lewis Raymes; Kenyatta Tripp; Scott Cribb;

Officer Murphy; Investigator Officer Welch; Supervisor Officer Breeden; and Supervisor Officer Humphries, and this

action is dismissed with prejudice.

This action was (check one):

□ tried by a jury, the Honorable

□ tried by the Honorable

presiding, and the jury has rendered a verdict.

presiding, without a jury and the above decision was reached.

decided by the Honorable Mary Geiger Lewis, United States District Judge, presiding, adopting the Report and

Recommendation of the Honorable Paige J. Gossett, United States Magistrate Judge, which recommended dismissing

the action with prejudice.

Date:

April 10, 2019

ROBINL. BLUME, CLERK OF COURT

s/B. Goodman

Signature of Clerk or Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

BRANDY VERNON HARRIS,

Plaintiff,

vs.

§

§

§

§

§

BRITNEY MAY; ANDRES MALDONADO; §

CHRISTOPHER PRICE; CAMERON KIRBY; §

SEAN SERCU; WILLIAM WATSON;

§

BRANDON AVIDON; ANTOINE LOGAN; §

JANE MOLDA; PETER LENZI; PAULA

§

BROWN; MUNICIPAL COURT ROCK HILL §

SOUTH CAROLINA; KENNETH MARTIN; §

DANIELS SHEALY; KEENA MCCROREY; §

JUSTIN SPADER; LEWIS RAYMES;

§

KENYATTA TRIPP; SCOTT CRIBB;

§

OFFICER MURPHY; INVESTIGATOR

§

OFFICER WELCH; SUPERVISOR OFFICER §

BREEDEN; and SUPERVISOR OFFICER

§

HUMPHRIES,.

§

Defendants.

§

CIVIL ACTION NO.: 0:18-CV-3499-MGL

ORDER ADOPTING REPORT AND RECOMMENDATION AND

DISMISSING WITH PREJUDICE PLAINTIFF’S AMENDED COMPLAINT

Plaintiff Brandy Vernon Harris (Harris) is proceeding pro se. The matter is before the

Court for review of the Report and Recommendation (Report) of the United States Magistrate

Judge suggesting Harris’s petition is subject to summary dismissal pursuant to 28 U.S.C. § 1915.

The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the

District of South Carolina.

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The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight. The responsibility to make a final determination remains with the

Court. Mathews v. Weber, 423 U.S. 261,270 (1976). The Court is charged with making a de novo

determination of those portions of the Report to which specific objection is made, and the Court

may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or

recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de

novo review, however, “when a party makes general and conclusory objections that do not direct

the court to a specific error in the [Magistrate Judge’s] proposed findings and recommendations.”

Orpiano v. Johnson, 687 F.2d 44,47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b). “A document filed

pro se is ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)). Courts are not, however, required to “conjure up questions

never squarely presented to them” or seek out arguments for a party. Beaudett v. City of Hampton,

775 F.2d 1274, 1278 (4th Cir. 1985).

The Magistrate Judge filed the Report on March 6, 2019, ECF No. 20, and the Clerk filed

Harris’s objections on March 13, 2019, ECF No. 22. The Clerk also filed Harris’s motion for a

new case number, ECF No. 26, and a subsequent letter Harris sent the Court regarding his motion

for a new case number, ECF No. 29.

After reviewing Harris’s complaint, the Magistrate Judge entered an order giving Harris

twenty-one days to amend his complaint and warning him that failure to amend would lead to a

recommendation for summary dismissal. ECF No. 10. Harris’s amended complaint is over onehundred-thirty copies of one page of the standard complaint form this Court provides pro se

litigants. Each one of the one-hundred-thirty pages has a date, time, place, and the name of a

defendant in this action, along with a conclusory legal phrase such as “false arrest,” “racial

2

discrimination,” or “deliberate indifference.” Critically, Harris fails to provide any facts or

specific allegations explaining how even one of the named defendants in this action violated his

constitutional rights. Although Harris attached various legal documents and arrest records to his

amended complaint, there is no clear connection between the documents and the defendants.

Harris fails to even list a cause of action anywhere in his amended complaint that would allow this

Court to construe his pleadings such that he states a cognizable legal claim.

In his objections to the Report, Harris purports to submit “Facts to Each Claim,”

presumably in response to the Magistrate Judge’s assertion Harris’s amended complaint was

devoid of facts and therefore subject to summary dismissal. For example, Harris asserts as one of

his objections:

I was found not guilty of 9 charges, I faxed a memo to the appeal judge Mrs.

Weaver the Defendant herein appeal his conviction and sentence and request

reversal on the following grounds: (1) The judge did not direct a verdict despite the

incident occurring on private property, and (2) the judge did not dismiss this case

when the behavior the defendant was charged for is speech protected by the 1st

amendment of the US Constitution.

ECF No. 22 at 2. Harris continues, “For the reason stated above the defendant requests that his

conviction for public disorderly conduct be reversed but was reverse 9 chargies was dismiss 2

appeals which proves violations within appeals makes total of 11 not guilty chargies.” Id. (errors

in original).

The remainder of Harris’s objections unfortunately are replete with similarly worded legal

conclusions without the necessary facts or allegations against defendants in this case necessary to

state a claim and survive summary dismissal. The Court concludes all of the materials Harris has

submitted, liberally construed, fail to correct the deficiencies identified in the Report. And, to the

extent Harris’s letter or motion for a new case number could be construed as a motion to amend,

the Court will decline to give Harris another opportunity to amend because such amendment would

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be futile. See Martin v. Duffy, 858 F.3d 239, 447-48 (4th Cir. 2017) (finding the plaintiffs

“repeated, ineffective attempts at amendment” suggest further amendment would be futile).

After a thorough review of the Report and the record in this case pursuant to the standard

set forth above, the Court overrules Harris’s objections, adopts the Report, and incorporates it

herein.

Therefore, it is the judgment of the Court Harris’s complaint is SUMMARILY

DISMISSED WITH PREJUDICE and without issuance and service of process. Because the

Court concludes summary dismissal is appropriate, the Court DISMISSES AS MOOT Harris’s

motion for a new case number.

IT IS SO ORDERED.

Signed this 10th day of April, 2019, in Columbia, South Carolina.

s/ Mary Geiger Lewis__________

MARY GEIGER LEWIS

UNITED STATES DISTRICT JUDGE

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified of the right to appeal this Order within thirty days from the

date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

Brandy Vernon Harris,

Plaintiff,

v.

Britney May; Andres Maldonado; Christopher

Price; Cameron Kirby; Sean Sercu; William

Watson; Brandon Avidon; Antoine Logan;

Jane Molda; Peter Lenzi; Paula Brown;

Municipal Court Rock Hill S.C.; Kenneth

Martin; Daniels Shealy; Keena Mccrorey;

Justin Spader; Lewis Raymes; Kenyatta Tripp;

Scott Cribb; Officer Murphy; Investigator

Officer Welch; Supervisor Officer Breeden;

Supervisor Officer Humphries,

Defendants.

)

)

)

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C/A No. 0:18-3499-MGL-PJG

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REPORT AND RECOMMENDATION

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The plaintiff, Brandy Vernon Harris, proceeding pro se, brings this action pursuant to 28

U.S.C. § 1915. 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.) By order dated January 17,2019, the court provided Plaintiff the opportunity

to file an amended complaint to correct deficiencies identified by the court that would warrant

summary dismissal of the Complaint pursuant to 28 U.S.C. § 1915. (ECF No. 10.) In response,

Plaintiff filed an Amended Complaint and supplement.1 (ECF No. 13 & 17.) Having reviewed the

Amended Complaint in accordance with applicable law, the court concludes the Amended Complaint

1 The court also issued an order directing Plaintiff to file the service documents necessary for

the issuance and service of process. (ECF No. 8.) In response, Plaintiff provided a summons form

that does not include Defendants Murphy, Welch, Breeden, or Humphries, and Plaintiff provided

Forms USM-285 for all of the defendants except “Municipal Court Rock Hill SC.” (ECF Nos. 12

& 18.) Thus, the case is still ready for the issuance and service of process.

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still fails to state a viable claim and should be summarily dismissed with prejudice and issuance of

service of process.

I.

Factual and Procedural Background

In both the original Complaint and the Amended Complaint, Plaintiff provides numerous

copies of one page of a standard complaint form this court provides pro se litigants. In the Amended

Complaint, Plaintiff includes over one hundred thirty copies of that page, and Plaintiff provides

similar allegations on each page. Each page includes a date, time, place, and the name of a

defendant, and each has a conclusory legal phrase such as “false arrest,” “racial discrimination,”

“deliberate indifference,” or the like, as the apparent allegation against each defendant. Among these

pages, there are eleven different dates and times listed between 2017 and 2018, and six different

locations, all apparently in Rock Hill, South Carolina. Plaintiff provides no specific allegations

about the defendants that explain how they violated Plaintiffs constitutional rights. And though it

appears all of the incidents involve arrests and legal proceedings, plaintiff provides no facts about

them other than dates, times, and places. Plaintiff also attaches various arrest records and related

legal documents to the Amended Complaint, but they have no clear connection to the limited

allegations in the pleadings. As for relief, Plaintiff indicates she seeks “reimbursement of bail” and

damages. (Am. Compl., ECF No. 13 at 127.)

II.

Discussion

A.

Standard of Review

Under established local procedure in this judicial district, a careful review has been made of

the pro se Complaint. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits

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

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costs of proceeding with the lawsuit. This statute allows a district court to dismiss the case upon a

finding that the action “is frivolous or 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.

§ 1915(e)(2)(B).

In order to state a claim upon which relief can be granted, the plaintiff must do more than

make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662,678 (2009); Bell Atl. Corn.

v. Twombly, 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. Iqbal, 556 U.S. at 678; Twombly, 550

U.S. at 570. The reviewing court need only accept as true the complaint’s factual allegations, not

its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

This 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”).

B.

Analysis

The court finds that despite having availed herself of the opportunity to cure the deficiencies

previously identified by the court, Plaintiff s Amended Complaint should nonetheless be summarily

dismissed for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). See Martin v. Duffy, 858 F.3d 239, 247-48 (4th Cir. 2017) (finding the

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plaintiffs “repeated, ineffective attempts an amendment” suggest further amendment would be

futile).

Both pleadings are nothing more than lists of defendants with corresponding constitutional

violations, dates, times, and places. However, Plaintiff provides no factual allegations to support

her assertions that the defendants violated her constitutional rights. 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). Nor does Plaintiff identify any specific causes of action she

seeks to raise against the defendants, such that the court could liberally construe the pleadings to

state a cognizable legal claim. Consequently, the court finds that the Amended Complaint fails to

state a claim upon which relief can be granted.

III.

Conclusion

Accordingly, the court recommends that the Amended Complaint be summarily dismissed

with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare,

724 F. App’x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the

plaintiff an opportunity to amend, directing the district court on remand to “in its discretion, either

afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with

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prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent.

Va. Legal Aid Soc’v, Inc., 807 F.3d 619, 630 (4th Cif_2015)).

(jQtMCkiPfAeM '

March 6, 2019

Columbia, South Carolina

Paige J. Gossettv

UNITED STATES MAGISTRATE JUDGE

Plaintiffs attention is directed to the important notice on the next page.

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and

Recommendation with the District Judge. Objections must specifically identify the portions of the

Report and Recommendation to which objections are made and the basis for such objections. “[I]n

the absence of a timely filed objection, a district court need not conduct a 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 v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005)

(quoting Fed. R. Civ. P. 72 advisory committee’s note).

Specific written objections must be filed within fourteen (14) days of the date of service of

this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P.

6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by

mailing objections to:

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation

will result in waiver of the right to appeal from a judgment of the District Court based upon

such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Am. 474 U.S. 140 (1985); Wright v.

Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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