Petition for Writ of Certiorari — C. Holmes, Petitioner v. Granuaile, LLC, et al.
Supreme Court briefSep 23, 2025
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IN THE
SUPREME COURT OF THE UNITED STATES
C, Holmes,
Petitioner,
M.
Granuaile, LLC, et al.,
Respondents.
APPENDIX
INDEX TO APPENDICES
Appendix A
US COA for the Fourth Circuit decision.
Appendix B
USDC-SC Charleston Division decision.
Appendix C
US COA for the Fourth Circuit denial of petition for rehearing.
USCA4 APPefJ28^W^48-Rf^fG19 Date
d^?l<J/W)25Ent^JilrR^r 95
Page 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1868
C. HOLMES, a/k/a Cynthia Holmes, a/k/a Cynthia Collie Holmes,
Plaintiff - Appellant,
v.
GRANUA1LE, LLC; J. P. WALSH, individually and as related to Granuaile, LLC;
L. WALSH, individually and as related to Granuaile, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:20-cv-01748-RMG)
Submitted: March 11,2025
Decided: March 13, 2025
Before NIEMEYER, RICHARDSON, and BENJAMIN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Holmes, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 APPe^28-%J-W7'48-R^fG19 Date iWd1 O^^^025 Ent^\lSrflf)ir 95
Page 2 of 2
PER CURIAM:
C. Holmes appeals the district court’s orders denying her motions for recusal,
accepting the recommendation of the magistrate judge and dismissing her civil action as
barred by res judicata, and denying her motion for reconsideration. We have reviewed the
record and find no reversible error. Accordingly, we affirm the district court’s orders.
Holmes v.
Granuaile,
LLC, No.
2:20-cv-01748-RMG (D.S.C. Aug.
8,
2024;
Aug. 21, 2024; Sept. 4, 2024). 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 decisional process.
AFFIRMED
2
2:20-cv-01748-RMG
Date Filed 08/27/20
Entry Number 19
Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
C. Holmes, a/k/a Cynthia Holmes,
a/k/a Cynthia Holmes, M.D., a/k/a
Cynthia Collie Holmes,
)
)
)
)
Plaintiff,
)
)
v.
) =
)
Granuaile L-LC; J.P. Walsh, individually )
and as related to Granuaile LLC',
)
L. Walsh, individually and as related to )
Granuaile LLC,
)
Civil Action No. 2:20-1748-BHH
ORDER
)
Defendants.
)
____________ __________________________)
This matter is before the Court upon Plaintiff Cynthia Holmes’ (“Plaintiff’) pro se
complaint. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)
-------- (D.S.C.), the matter was referred to a United States Magistrate Judge for preliminary
review.
On August 5, 2020, Magistrate Judge Molly H. Cherry issued a Report and
Recommendation (“Report”) outlining the issues and recommending that the Court
summarily dismiss Plaintiffs complaint without prejudice. In her Report, the Magistrate
Judge explained that this action is barred by the doctrine of res judicata based on the final
judgment in a prior action filed by Plaintiff against the same parties and alleging the same
claims. See Holmes v. Granuaile LLC, et al., No. 2:16-cv-3969-BHH, 2019 WL 350391
(D.S.C. Jan. 29, 2019), aff’d, 778 F. App’x 222 (4th Cir. 2019). Attached to the Magistrate
Judge’s Report was a notice advising Plaintiff of the right to file written objections to the
Report within fourteen days of being served with a copy. To date, no objections have been
2:20-cv-01748-RMG
Date Filed 08/27/20
Entry Number 19
Page 2 of 2
filed.
The Magistrate Judge makes only a recommendation to the Court.
The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only 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. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in 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.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Here, because no objections were filed, the Court has reviewed the record, the
applicable law, and the findings and recommendations of the Magistrate Judge for clear
error. Finding none, the Court adopts and incorporates the Magistrate Judge’s Report
(ECF No. 17), and this action is dismissed as frivolous.
AND IT IS SO ORDERED.
/s/Bruce H. Hendricks_________
The Honorable Bruce Howe Hendricks
United States District Judge
August 27, 2020
Charleston, South Carolina
2
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--Case Participants: Honorable Bruce Howe Hendricks (hendricks_ecf@scd.uscourts.gov),
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Subject:Activity in Case 2:20-CV-01748-BHH Holmes v. Granuaile LLC et al Order to Vacate
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***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
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U.S. District Court
District of South Carolina
Notice of Electronic Filing
The following transaction was entered on 8/31/2020 at 2:12 PM EDT and filed on 8/31/2020
Case Name:
Holmes v. Granuaile LLC et al
Case Number:
2:20-cv-0r748-BHH
Filer:
WARNING: CASE CLOSED on 08/27/2020
Document Number: 24(No document attached)
Docket Text:
ORAL ORDER to Vacate [19] ORDER RULING ON REPORT AND
RECOMMENDATION. Plaintiff's Objections were received on 08/21/2020. See
Clerk's Notice #23. Entered at the direction of the Honorable Bruce Howe
Hendricks on 08/31/20. (rshu, )
2:20-cv-01748-BHH Notice has been electronically mailed to:
2:20-cv-01748-BHH Notice will not be electronically mailed to:
C Holmes
P.O. Box 187
Sullivans Island, SC 29482
l of I
9/23/2025. 9:22 AM
2:20-cv-01748-RMG
Date Filed 12/16/20
Page 1 of 4
Entry Number 29
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
C. Holmes, a/k/a Cynthia Holmes,
a/k/a Cynthia Holmes, M.D., a/k/a
Cynthia Collie Holmes,
)
)
)
)
Plaintiff,
)
)
v.
)
)
Granuaile LLC; J.P. Walsh, individually )
and as related to Granuaile LLG,
)
L. Walsh, individually and as related to )
Granuaile LLC,
)
Civil Action No. 2:20-1748-BHH
ORDER
)
Defendants.
)
)
This matter is before the Court upon Plaintiff Cynthia Holmes’ (“Plaintiff’) pro se
complaint. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)
(D.S.C.), the matter was referred to a United States Magistrate Judge for preliminary
review.
'
On August 5, 2020, Magistrate Judge Molly H. Cherry issued a Report and
Recommendation (“Report”) outlining the issues and recommending that the Court
summarily dismiss Plaintiff’s complaint without prejudice. In her Report, the Magistrate
Judge explained that this action is barred by the doctrine of res judicata based on the final
judgment in a prior action filed by Plaintiff against the same parties and alleging the same
claims. See Holmes v. Granuaile LLC, et al., No. 2:16-cv-3969-BHH, 2019 WL 350391
(D.S.C. Jan. 29, 2019), aff’d, 778 F. App’x 222 (4th Cir. 2019) (hereinafter referred to as
“the prior action”). Attached to the Magistrate Judge’s Report was a notice advising
Plaintiff of the right to file written objections to the Report within fourteen days of being
2:20-cv-01748-RMG
served with a copy.
Date Filed 12/16/20
Entry Number 29
Page 2 of 4
Due to an inadvertent oversight in the Clerk’s Office, Plaintiffs
objections were not electronically filed until August 31,2020, although they were received
on August 21,2020. (See ECF No. 23.) On August 27, 2020, the Court issued an order
adopting the Magistrate Judge’s Report without objection.
However, once the Court
learned of the error in the late filing of Plaintiffs objections, the Court promptly vacated its
order adopting the Report and reopened the matter for consideration of Plaintiffs
objections. In the meantime, Plaintiff filed a Rule 59(e) order, which the Court now finds
moot based on the Court’s oral order vacating the Court’s prior written order. (See ECF
No. 24.)
The Magistrate Judge makes only a recommendation to the Court.
The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only 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. 28 U.S.C. § 636(b)(1).
In her objections to the Magistrate Judge’s Report, Plaintiff first repeats largely
irrelevant portions of previous filings from both this case and from other cases she has filed
in this Court. Next, however, Plaintiff raises specific objections to the Magistrate Judge’s
Report. First, Plaintiff asserts that the Court should wholly disregard the dismissal of her
prior action, see No. 2:16-cv-3969-BHH, upon which the Magistrate Judge relies in finding
that this action is barred by the doctrine of res judicata. In support, Plaintiff asserts that the
2
2:20-cv-01748-RMG
Date Filed 12/16/20
Entry Number 29
Page 3 of 4
nuisance cause of action is continuing and ongoing and that, therefore, she is not barred
from filing a new claim. In addition, Plaintiff asserts that she did not consent to the referral
of this matter to a Magistrate Judge, and she claims that the Magistrate Judge lacks
jurisdiction to consider the matter.
Plaintiff also objects to the Magistrate Judge’s
conclusion that this action is frivolous, and she objects to a number of the citations
included in the Magistrate Judge’s Report. Overall, Plaintiff contends that there was no
determination on the merits in the prior action and that res judicata therefore does not
apply; that her cause of action is ongoing and covers a different time period after the
conclusion of her former action; and that this action presents a new nuisance cause of
action as a matter of law.
After a thorough review of Plaintiff’s objections, the Court finds them wholly without
merit. As the Magistrate Judge explained, there was a final judgment on the merits in the
prior action as the Court granted summary judgment in favor of the defendants in the prior
action.
Moreover, despite Plaintiffs arguments to the contrary, the Court notes that
Plaintiffs complaint in this action is virtually identical to her amended complaint in the prior
action, and the Court fully agrees with the Magistrate Judge that the causes of action in the
lawsuit are the same as those adjudicated in the prior action. In addition, this action
involves the same parties as the prior action. Accordingly, the Court finds no merit to
Plaintiff’s objections, and, for the same reasons set forth by the Magistrate Judge, the
Court finds that this action is barred by the doctrine of res judicata and is subject to
summary dismissal without prejudice.
3
2:20-cv-01748-RMG
Date Filed 12/16/20
Entry Number 29
Page 4 of 4
CONCLUSION
Based on the foregoing, it is hereby ORDERED that the Magistrate Judge’s Report
(ECF No. 17) is adopted and specifically incorporated herein; Plaintiffs objections (ECF
No. 22) are overruled; Plaintiffs Rule 59(e) motion (ECF No. 28) is denied as moot; and
this action is summarily dismissed without prejudice.
AND IT IS SO ORDERED.
/s/Bruce H. Hendricks_______
United States District Judge
December 15, 2020
Charleston, South Carolina
4
2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 1 of 13
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
C. Holmes, a/k/a Cynthia Holmes, a/k/a )
Cynthia Holmes, M.D., a/k/a Cynthia Collie )
Holmes,
)
C/A No. 2:20-01748-RMG-MHC
)
Plaintiff,
)
REPORT AND RECOMMENDATION
)
)
)
Granuaile, LLC; J.P. Walsh, individually and )
as related to Granuaile, LLC', L. Walsh, )
individually and as related to Granuaile, LLC, )
)
v.
Defendants.
Plaintiff C. Holmes (also known as Cynthia Holmes, Cynthia Holmes, M.D., and Cynthia
Collie Holmes), proceeding pro se,1 brings this civil action asserting claims under state law. All
pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(D.S.C.).
On August 5, 2020, the undersigned entered a report and recommendation (ECF No. 17)
recommending that this action be dismissed without prejudice as frivolous because the doctrine of
res judicata was applicable to bar Plaintiffs claims. In the report and recommendation, the
undersigned noted that this action names the same defendants Plaintiff named in a previous case
she filed in this Court, Holmes v. Granuaile, LLC, No. 2:16-3969-BHH-BM (D.S.C.), herein also
referred to as Holmes I. It was also noted that there was a final judgment on the merits in Holmes
I; the Complaint in this action was nearly identical to the amended complaint in Holmes I; and
Plaintiff raised the same claims (trespass, nuisance, negligence, and unjust enrichment) in both
1 Plaintiff, who appears to be an attorney admitted to practice in the State of South Carolina (see
South Carolina Bar website, https://www.scbar.org/lawyers/directory/profile/ ! 337), is proceeding
pro se with respect to her claims in this action. There is no indication that she is currently admitted
to practice in this Court.
2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 2 of 13
actions. See ECF No. 17. Plaintiff was informed that the report and recommendation constituted
notice to her of material defects in her filing and it was explained that she needed to file a complete,
proposed amended complaint if she wanted to amend her Complaint. Id: at 5.
Plaintiff filed objections (ECF No. 22) to the report and recommendation but did not file
any proposed amended complaint. The District Judge reviewed the objections and found them to
be without merit, and dismissed the Complaint without prejudice because the action was barred by
the doctrine of res judicata. ECF No. 29. Plaintiffs motion for reconsideration was denied on
March 25, 2021 (ECF No. 35), and Plaintiff appealed. The Fourth Circuit dismissed the appeal and
directed that this Court either afford Plaintiff an opportunity to amend or dismiss the complaint
with prejudice. See ECF No. 43. On April 12, 2022, the District Judge granted Plaintiff thirty days
to file an amended complaint. ECF No. 47. Plaintiff filed an Amended Complaint2 on May 11,
2022. ECF No. 50.
The District Judge referred this action back to the undersigned for consideration of the
Amended Complaint. ECF No. 53. Plaintiff filed motions to stay (ECF No. 55) and to
amend/correct (ECF No. 56) which were denied by the District Judge3 on August 17, 2022. ECF
No. 57. Plaintiff appealed these decisions and the Fourth Circuit Court of Appeals dismissed the
appeal on June 9, 2023 (a mandate was issued on July 26, 2023 - ECF No. 68). Plaintiff filed a
petition for writ of certiorari that was denied (ECF No. 71) by the Supreme Court of the United
States. See Holmes v. Granuaile, LLC, No. 23-5311, 2024.WL 674883 (U.S. Feb. 20, 2024).
I.
BACKGROUND
In her Amended Complaint, Plaintiff again brings claims against Defendants Granuaile,
2 Plaintiff titled this the Second Amended Complaint (ECF No. 50 at 1), but it is the First Amended
Complaint.
3 This case was previously assigned to United States District Judge Bruce H. Hendricks. It is
currently assigned to United States District Judge Richard M. Gergel. See ECF Nos. 72, 73.
2
2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 3 of 13
LLC (Granuaile); J. P. Walsh (J. P. Walsh), individually and as related to Granuaile, LLC; and L.
Walsh (L. Walsh), individually and as related to Granuaile, LLC. ECF No. 50 at 1. She asserts that
this Court has jurisdiction under 28 U.S.C. § 1332 because there is complete diversity of the parties
and the amount in controversy allegedly exceeds $75,000. Id. at 2.
Plaintiff states that she owned and used as a primary residence real property located on Poe
Avenue in Sullivan’s Island, South Carolina during all times relevant to her claims. ECF No. 50
at 3. She claims that Defendants allegedly owned, managed, and/or maintained real property
“adjacent to the Plaintiffs property” during the relevant time period. Id. at 2. In her “FACTS”
section, Plaintiff asserts:
.
TENTH: On or about April 19, 2014, Defendants caused ongoing, continuing, and
abatable trespass and injury to Plaintiff, Plaintiffs family and/or Plaintiffs
property adjacent and next door to that of Defendants in Charleston County,
including but not limited to, trespass by water and/or contaminants collecting and
standing in and/or under residential property, dwellings, and rear enclosed areas
where children and pets play and live, by failing to maintain historical drainage
patterns in a Flood Plain, by interrupting natural drainage patterns, and/or by
wrongful collection and discharge of Defendants’ storm water, contaminants,
drainage and/or runoff onto Plaintiffs adjacent as well as surrounding properties.
ELEVENTH: The Plaintiff has provided notice to Defendants of objections to
Defendants’ voluntary wrongdoing without Plaintiffs permission. Defendants have
failed and refused, in a willful, wanton, and/or reckless manner, to correct the
wrongdoing which is ongoing, continuing, and abatable.
ECF No. 50 at 3. Plaintiff alleges claims for trespass, nuisance, negligence, and unjust enrichment.
Id. at 4-7. She requests monetary damages. Id. at 8.
In Holmes I, Plaintiff alleged that on or shortly after February 2014, the defendants
(Granuaile, J.P. Walsh, and L. Walsh) allegedly committed continuous and recurring acts of
trespass by water and/or contaminants without Plaintiffs permission and despite her objection.
She asserted claims for trespass, nuisance, negligence, and unjust enrichment based on her
allegations concerning water and other substances allegedly coming from the defendants pioperty
3
2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 4 of 13
which is next to Plaintiff’s property. Plaintiff specifically alleged in Holmes 1 that there was
improper discharge of stormwater, blockage of natural and historical drainage patterns, improper
discharge of contaminants/chemicals, and the introduction of a reservoir for mosquitoes to breed.
Holmes v. Granuaile, LLC, No. 2:16-3969-BHH-BM (D.S.C.), Docket No. 36. After a period of
discovery, the defendants in Holmes I filed a motion for summary judgment, the motion for
summary judgment was granted, and the case was dismissed. See Holmes v. Granuaile LLC, No.
CV 2:16-3969-BHH, 2019 WL 350391 (D.S.C. Jan. 29, 2019), aff’d, 778 F. App’x 222 (4th Cir.
2019).
IL
STANDARD OF REVIEW
Although Plaintiff is not proceeding in forma pauperis,4 this filing is nonetheless subject
to review pursuant to the inherent authority of this Court to ensure that a plaintiff has standing;
subject matter jurisdiction exists; and the case is not frivolous.5 See Ross v. Baron, 493 F. App’x
405, 406 (4th Cir. Aug. 22, 2012); Ferguson v. Wooton, 741 F. App’x 955 (4th Cir. 2018)
(collecting cases and explaining that “[fjrivolous complaints are subject to dismissal pursuant to
the district court’s inherent authority, even when the plaintiff has paid the filing fee” and that
“dismissal prior to service of process is permissible when a court lacks subject matter jurisdiction
over a patently frivolous complaint”); Smith v. Kagan, 616 F. App’x 90 (4th Cir. 2015) (“Frivolous
complaints are subject to dismissal pursuant to the court’s inherent authority, even when the
plaintiff has paid the filing fee); Fitzgerald v: First E. Seventh St. Tenants Corp., 221 F.3d 362,
363—364 (2d Cir. 2000). “[I]t is well established that a court has broad inherent power sua sponte
4 Plaintiff has paid the full filing fee. See Receipt SCX200017108.
5 Pre-screenilig under 28 U.S.C. § 1915 is inapplicable in pro se, non-prisoner, fee-paid cases. See
Bardes v. MagerafNo. 2:08-487-PMD-RSC, 2008 WL 2627134, at *8-10 (D.S.C. June 25, 2008)
(finding persuasive the Sixth Circuit’s opinion in Benson v. O’Brian, 179 F.3d 1014 (6th Cir.
1999), that 28 U.S.C. § 1915(e)(2) is inapplicable to actions that are not pursued in forma
pauperis').
4
2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 5 of 13
to dismiss an action, or part of an action, which is frivolous, vexatious, or brought in bad faith.”
Brown v. Maynard, No. L-4 1—619, 2011 WL 883917, at *1 (D. Md. Mar. 11, 2011) (citing cases).
Therefore, a court has “the discretion to dismiss a case at any time, notwithstanding the payment
of any filing fee or any portion thereof, if it determines that the action is factually or legally
frivolous.” Id. As such, this case is subject to review pursuant to the inherent authority of this
Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See, e.g.,
Ross v. Baron, 493 F. App’x at 406; Carter v. Ervin, No. 14—0865, 2014 WL 2468351 (D.S.C.
June 2, 2014) (“[E]ven when the filing fee is paid, the court possesses the inherent authority to
ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not
frivolous.”); Cornelius v. Howell, No. 06—3387, 2007 WL 397449, at *3 (D.S.C. Jan. 8, 2007),
report and recommendation adopted, 2007 WL 4952430 (D.S.C. Jan. 30, 2007) (summary
dismissal of fee paid case where the court lacked subject matter jurisdiction), aff’d, 251 F. App’x
246 (4th Cir. 2007).
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 ofSoc. 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 ).
III.
DISCUSSION
It is recommended that this action be dismissed as frivolous because it is barred by the
doctrine of res judicata.
5
2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 6 of 13
Collateral estoppel and res judicata are affirmative defenses that typically must be raised
by an opposing party. Fed. R. Civ. P. 12. Nevertheless, a court may sua sponte raise issues of
preclusion in “special circumstances,” even though the defense has not been raised. Arizona v.
California, 530 U.S. 392, 412 (2000) (quoting United States v. Sioux Nation, 448 U.S. 371, 332
(190) (Rehnquist, J., dissenting) (internal quotation marks omitted)). “This result is fully consistent
with the policies underlying res judicata', it is not based solely on the defendant’s interest in
avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary
judicial waste. Id.; see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006)
(determining res judicata may be raised and considered sua sponte because it implicates important
institutional interests of the judiciary); Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998) (finding
that district court did not err by raising the issue of collateral estoppel on its own because of the
“strong public policy in economizing the use of judicial resources of avoiding relitigation”); Smith
v. Spears,ISo. CV 2:17-3384-PMD-BM, 2018 WL 4523201, at *3 (D.S.C. Feb. 8, 2018) (“While
res judicata is ordinarily an affirmative defense, a court may sua sponte raise the issue of res
judicata in special circumstances where the previous action was litigated.in the same district court,
or where all relevant data, and legal records are before the court and judicial economy will be
served by invoking res judicata sua sponte.”'), report and recommendation adopted, 2018 WL
2772668 (D.S.C. June 11,2018). Here, the previous action (Holmes I) was litigated in this Court
and judicial economy will be served by involving res judicata sua sponte.
Where the prior proceeding involves the litigation of a federal question claim in federal
court, federal law regarding res judicata applies. See Semtek Int’l Inc. v. Lockheed Martin Corp.,
531 U.S. 497, 506-09 (2001); see also Andrews v. Daw, 201. F.3d 521, 524 (4th Cir. 2000)
(“Because [plaintiff] brought his first suit against [defendant] in federal court, federal rules of res
6
, 2:20-cv-01748-RMG
Date Filed 07/17/24
Entry Number 75
Page 7 of 13
judicata apply.”).6 The Fourth Circuit Court of Appeals recently noted that “when a prior federal
action ‘based on diversity jurisdiction’ has been ‘adjudicated in [a] federal district court ... [u]nder
Semtek, the preclusive effect, if any, of the [prior federal court] action should ... be[ ] decided under
the res judicata law of the state’ in which the court was located.” 7 T.H.E. Ins. Co. v. Davis, 54
F.4th 805, 819-820 (4th Cir. 2022),8 citing Q Intern. Courier Inc. v. Smoak, 441 F.3d 214, 218
(4th Cir. 2006).
Holmes 1 was based on diversity jurisdiction and was adjudicated in the District of South
Carolina such that it appears South Carolina law is applicable. Under South Carolina law, res
judicata “defines the effect a valid judgment may have on subsequent litigation between the same
parties and their privies. R.es judicata ends litigation, promotes judicial economy and avoids the
harassment of relitigation of the same issues.” Plum Creek Dev. Co. v. City of Conway, 512 S.E.2d
106, 108 (S.C. 1999) (citing J. Flanagan, South Carolina Civil Procedure, p. 642). Further, res
judicata “bars subsequent suit by the same parties on the same issues ... [and] bars subsequent suit
6 South Carolina law applies when the first action is brought in the South Carolina courts and the
second action is filed in the federal district court and involves diversity jurisdiction. See Sanders
v. Novant Health, Inc., No. 0:20-01287, 2021 WL 1140222, at *2 (D.S.C. Mar. 25, 2021)
(unpublished) (“A federal court sitting in diversity jurisdiction must apply the res judicata or
collateral estoppel law of the state from which the original judgment issued.”); In re McNallen, 62
F.3d 619, 624 (4th Cir. 1995) (“In determining the preclusive effect of a state-court judgment, the
federal courts must, as a matter of full faith and credit, apply the forum state’s law of collateral
estoppel.”).
7 In Semtek, the first case was dismissed on limitations grounds by a federal court in California
sitting in diversity. The second action was brought in the state court of Maryland asserting similar
claims under Maryland law. The Supreme Court found that “[b]ecause the claim-preclusive effect
of the California federal court’s dismissal ‘upon the merits’ of petitioner’s action on statute of
limitations grounds is governed by a federal rule that in turn incorporates California’s law of claim
preclusion (the content of which We do not pass upon today), the Maryland Court of Special
Appeals erred in holding that the dismissal necessarily precluded the bringing of this action in the
Maryland courts.”). Semtek, 531 U.S. at 509.
8 Davis involved a question of insurance coverage. A separate damages lawsuit was filed in the
District of Maryland, pursuant to diversity jurisdiction, and the case was resolved in a settlement.
The Fourth Circuit found that “Maryland law controls a determination of the preclusive effect, if
any, of the settlement.” Davis, 54 F.4th at 819.
7
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by the same parties when the claims arise out of the same transaction or occurrence that was the
subject, of the prior suit between those parties.” Sub-Zero Freezer Co. v. R.J. Clarkson Co., 417
S.E.2d 569, 571 (S.C. 1992). Under the doctrine of res judicata, “[a] litigant is barred from raising
any issues which were adjudicated in the former suit and any issues which might have been raised
in the former suit.” Hilton Head Center ofSouth Carolina, Inc. v. Public Service Comm ’n ofSouth
Carolina, 362 S.E.2d 176, 177 (S.C. 1987). To establish res judicata there must be: “(1) identity
of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former
suit.” Riedman Corp. v. Greenville Steel Structures, Inc., 419 S.E.2d 217, 218 (S.C. 1992); see
also Sealy v. Dodge, 347 S.E.2d 504, 545 (S.C. 1986); Plum Creek Dev. Co., 512 S.E.2d at 109.
Here, there is identity of the parties as Plaintiff is suing the same parties in this action as
she did in Holmes I. There is also identity of the subject matter. Plaintiff once again brings claims
concerning water and other contaminants allegedly coming onto, her property from the adjacent
property after improvements to the driveway on the adjacent property in 2014. In the current
action, Plaintiff brings claims that she brought or could have brought in Holmes I. Finally, there
was an adjudication of the issue in the former suit because the defendants’ motion for summary
judgment was granted and the case was dismissed. See Amended Complaint, ECF No. 50; Holmes
I, Docket Number 36; Holmes v. Granuaile LLC, No. CV 2:16-3969-BHH, 2019 WL 350391
(D.S.C. Jan. 29, 2019).
If federal law of res judicata is applicable, this case is also subject to summary dismissal.
Under the doctrine of claim preclusion, or res judicata in the Fourth Circuit, “a final judgment on
the merits of an action precludes the parties or their privies from relitigating issues that were or
could have been raised in that action.” Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004)
(citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 .(1981); Brown v. Felsen, 442
U.S. 127, 131 (1979); Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991)).
8
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“By precluding parties in a subsequent proceeding from raising claims that were or could have
been raised in a prior proceeding, res judicata encourages reliance on judicial decisions, bars
vexatious litigation, and frees the courts to resolve other disputes.” Id. (citation and internal
quotation marks omitted).
For the doctrine of res judicata to be applicable in the Fourth Circuit, there must be: (1) a
final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier
and later suit; and (3) an identity of parties or their privies in the two suits. Martin v. Am. Bancorp.
Ret. Plan, 407 F.3d 643, 650 (4th Cir. 2005); Nash Cnty Bd. of Educ. v. Biltmore Co., 640 F.2d
484, 486 (4th Cir. 1981). Here, there was a final judgment on the merits in the prior suit (Holmes
I), the causes of action raised in both this lawsuit and in Holmes I are the same, and the identity of
parties is the same in the two lawsuits. See Amended Complaint, ECF No. 50; Holmes I, Docket
Number 36; Holmes v. Granuaile LLC, No. CV 2:16-3969-BHH, 2019 WL 350391 (D.S.C. Jan.
29,2019). .
Plaintiff may be attempting to argue that the claims she raises in the present action are
different than those raised in Holmes I. However, under res judicata “[a] final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that were or could
have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. at 398 (emphasis
added). Moreover, Plaintiff “cannot circumvent the doctrine of res judicata by simply asserting in
totally conclusory terms that injuries are ‘ongoing.’” Chaudhary v. Stevens, No. CIV.A.
3:05CV382, 2005 WL 1923231, at *4 (E.D. Va. Aug. 9, 2005), aff'd, 182 F. App’x 204 (4th Cir.
2006).
Thus, the doctrine of res judicata is applicable to bar Plaintiffs claims and the present
lawsuit is subject to summary dismissal as it is frivolous. See Brown v. South Carolina, No. 3:13—
2983-MBS-PJG, 2014 WL 4826152, *2 (D.S.C. Sept. 24, 2014) (determining that because the pro
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se litigant had filed another case reasserting the same claims against the same parties as in a prior
case, “all three elements of res judicata have been met, subjecting Plaintiff’s action to summary
dismissal as frivolous”), aff’d, 589 F. App’x 190 (4th Cir. 2015); see also Nelums v. Hutchens L.
Firm, LLP, No. CV 3:21-2161-JFA-PJG and 3:21-2162-MGL-PJG, 2021 WL 4596958 (D.S.C.
Aug. 31,2021), report and recommendation adopted sub nom. Nelums v. Hutchens L. Firm, LLP,
No. 3-.21-CV-2161-JFA-PJG, 2021 WL 4272597 (D.S.C. Sept. 21, 2021), and report and
recommendation adopted sub nom. Nelums v. Waites, No. CV 3:21-2162-MGL-PJG, 2022 WL
304796 (D.S.C. Feb. 2, 2022), aff’d, No. 22-1223, 2022 WL 2303962 (4th Cir. June 27, 2022)
(dismissing complaints sua sponte as frivolous where the complaints failed to comply with Fed.
R. Civ. P. 8, failed to explain how the plaintiffs had standing to bring the action, appeared to
request the bringing of criminal charges for which the plaintiffs did not have standing or authority
to bring by fling a civil lawsuit, and were barred by the principles of res judicata); Trawick v. Med.
Univ: of S.C., No. 2:16-cv-730-DCN-MGB, 2016 WL 8650132, at *4 (D.S.C. June 28, 2016)
(recommending dismissal of duplicative claims sua sponte as they were barred by the doctrine of
res judicata and frivolous), report and recommendation adopted, 2016 WL 8650131 (D.S.C. July
7, 2016), aff’d, 671 F. App’x 85 (4th Cir. 2016). “[Djistrict courts are not required to entertain
duplicative or redundant lawsuits.” Cottle v. Bell, No. 00-6367, 2000 WL 1144623, *1 (4th Cir.
Aug.14, 2000); see also MacKinnon v. City of N.Y., 580 F. App’x 44 (2d Cir. 2014) (“[w]e have
regularly upheld a district court’s authority to dismiss sua sponte a pro se complaint on res judicata
grounds”), cert, denied, 575. U.S. 1010 (2015); Paul v. de Holczer, No. 3:15—2178—CMC—PJG,
2015 WL 4545974, *6 (D.S.C. July 28, 2015) (dismissing fee paid case, holding that “repetitious
litigation of virtually identical causes of action” may be dismissed as frivolous), aff’d, 631 F.
App’x 197 (4th Cir. Feb. 4, 2016); Southern Holdings, Inc. v. Horry Cly., No. 4:02-1859-RBH,
10
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2014 WL 11071017, *6 (D.S.C. June 11, 2014) (“the many previous grounds argued and ruled on
in previous orders and upheld on appeal lack merit and are simply duplicative”).
Within her Amended Complaint, Plaintiff includes a heading titled “Motion” in which she
writes:
■
'
SIXTH: The plaintiff timely makes this motion to the District Court for disposition
by the District Court, not a magistrate, on plaintiffs motion for the substantial right
of de novo determination by Article III Judicial Officer without Report &
Recommendation (R&R) on dispositive matters. There is no consent and no
express, voluntary consent to a magistrate.
SEVENTH: If the District Court denies the motion for the substantial right of de
novo determination by Article II Judicial Officer without R&R on dispositive
matters, plaintiff respectfully requests permission to appeal this issue to the United
States Court of Appeals for the Fourth Circuit with stay pending resolution.
ECF No. 50 at 2-3. To the extent that this is a motion embedded within the Amended Complaint,
it is recommended that it be denied because the referral to a magistrate judge was properly made
pursuant to Local Civil Rule 73.02(B)(D.S.C.) and 28 U.S.C. § 636. And, if timely and proper
objections are made to any report and recommendation, the district court will review the objections
under a de novo standard. See 28 U.S.C. § 636(b)(1).
Moreover, after Plaintiff filed her Amended Complaint and the case was referred back to
the undersigned, Plaintiff filed a motion to stay (ECF No. 55) and a motion (ECF No. 56)
requesting that the District Judge amend/correct her order (ECF No. 53) referring the case back to
the undersigned. In a text order (ECF No. 57) entered August 17, 2022, the District Judge denied
Plaintiffs motions stating:
After review, the Court hereby denies Plaintiffs most recent motions. First, in her
motion for stay, or in the alternative, for permission to appeal (ECF No. 55),
Plaintiff asserts that she declines consent to a Report and Recommendation by a
Magistrate Judge, and she moves for disposition of the matter by a District Judge.
Next, in her Rule 59(e) motion to alter or amend (ECF No. 56), Plaintiff asserts that
the Court’s July 21, 2022 order erroneously states “consent” regarding referral to a
Magistrate, and she indicates that she does not consent to a Magistrate Judge
reviewing her case. ***As an initial matter, Plaintiff misconstrues the term
11
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Page 12 of 13
“consent” on the July 21 order. (ECF No. 56-1). The inclusion of “consent” in
“subject” simply refers to the electronic “activity” used to file the text order in the
Court’s electronic filing system. Importantly, nowhere in the Court’s actual text
order does it indicate that Plaintiff consents to referral to a Magistrate Judge. That
is because reference of this case to a Magistrate Judge is automatic pursuant to the
Local Civil Rules of this District, as Plaintiff is proceeding pro se in this action.
Specifically, Local Civil Rule 73.02 concerns “Assignment of Duties to Magistrate
Judges” and provides that the “Clerk of Court shall assign the following matters to
a full-time magistrate judge upon filing...(e) [a]ll pretrial proceedings involving
litigation by individuals proceeding pro se.” Local Civil Rule 73.02 (D.S.C.). It is
thus irrelevant whether Plaintiff consents, because such reference to a Magistrate
Judge is automatic. Ultimately, the Court finds no merit to Plaintiffs motions, and
the Court hereby denies both Plaintiffs motion for stay and.her motion to alter or
amend.
ECF No. 57.9 '
IV.
RECOMMENDATION
Based on the foregoing, it is recommended that this action be dismissed without issuance
and service of process and without leave to amend.10
Plaintiffs attention is directed to the important notice on the following page.
July 17,2024
Charleston, South Carolina
9 Plaintiff appealed the Text Order (ECF No. 57) to the Fourth Circuit Court of Appeals, which
dismissed the appeal because the orders Plaintiff sought to appeal were neither final ordeis nor
appealable interlocutory or collateral orders. The Supreme Court denied Plaintiff s petition for writ
of certiorari. See ECF Nos. 66,68, 71; Holmes v. Granuaile, LLC, No. 22-1904,2023 WL 3918692
(4th Cir. June 9, 2023), cert, denied sub nom. C. Holmes v. Granuaile, LLC, 144 S. Ct. 826 (2024).
10 See Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (holding that “when a district court
dismisses a complaint or all claims without providing leave to amend ... the order dismissing the
complaint is final and appealable”).
12
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Page 13 of 13
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
Post Office Box 835
Charleston, South Carolina 29402
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).
13
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Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
IS2UUL29
USDC-SC 2:20-cv-01748
Plaintiff,
A
M11=23
C. Holmes, M.D.,
Granuaile, LLC, et al.
Defendants.
Notice of Motions, Motion to Recuse, and
Motion to Hold All Time Limits in Abeyance Pending Resolution
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PLEASE TAKE NOTICE that the plaintiff hereby moves for issuance of order of
recusal/disqualification of the magistrate in this matter with abeyance of all time limits pending
resolution. This motion to recuse/disqualify is governed by the Federal South Carolina Rules of Court,
statutory and case law, and State and Federal Constitutional law and is based upon the attached
affidavit. If denied, motion for stay pending appeal is entered including denial of substantial rights
incapable of vindication on appeal and matters of great public importance.
The plaintiff respectfully requests recusal due to plaintiff’s reasonable belief given the
circumstances that the magistrate lacks impartiality mandated by the Rules of Court, statutory and case
law, and State and Federal Constitutional law. The question is not whether the magistrate is impartial
in fact, but rather whether reasonable men/women might question impartiality under all circumstances.
United States v. Gigax, 605 F.2d 507 (10th Cir. 1979). Under Canon 3(E)(1)(a), a judge should
disqualify himself/herself in a proceeding in which his impartiality might reasonably be questioned,
including but not limited to, instances where he/she has a personal bias or prejudice against a party.
Roche v. Young Bros., Inc., 332 S.C. 75, 504 S.E.2d 311 (1998).
In the event the magistrate does not recuse, the plaintiff is requesting an evidentiary hearing
before a judge other than the subject of the motion, at which hearing he/she may adduce the
overwhelming evidence raising questions of lack of impartiality due to, including but not limited to, the
magistrate’s summary dismissal before service based on affirmative defense required to be raised or
waived by the other side in Civil Action No. 2:20-cv-01748. The record reflects the magistrate acts as
defendants’ attorney and/or breaches the duty to be a neutral decision-maker. Other examples of lapses
of impartiality abound. If the magistrate does not recuse, the instant motion should be heard by a
judge, not the magistrate who is the subject of the motion. By analogy and from another state, the case
of Johnson v. District Court, 674 P.2d 952 (Colo. 1984) is apposite. From that case, the court found that
where a party signs a notarized affidavit alleging conduct and/or statements on the part of a judge
which, if true, show bias and prejudice or the appearance of bias or prejudice on the part of the judge, it
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is an abuse of discretion if that judge does not withdraw from the case, even though he or she believes
the statements are false or that the meaning attributed to them by the party seeking recusal is erroneous.
In such a case, the judge should not pass upon the truth or falsity of the facts alleged in the affidavit,
but only upon the adequacy of the motion as a matter of law. From another case, the court ruled: The
fact that the judge in his own mind does not believe that he is prejudiced does not prevent
disqualification if the motions and affidavits reflect prejudice and/or appearance of impropriety or
impropriety in fact. Wright vs. District Court, 16 Colorado Lawyer 541, March 1987. The fact that the
judge in his or her own mind does not believe that he/she is prejudiced does not prevent
disqualification if the motion and affidavit reflect prejudice. It is not sufficient for a party seeking
disqualification to simply allege bias; the party must show by affidavit some evidence of bias or
prejudice. Mallett v. Mallett, 323 S.C. 141, 473 S.E.2d 804 (Ct.App.1996).
Other courts have found that once facts have been set forth that create a reasonable inference of
a "bent of mind" that will prevent the judge from dealing objectively and/or fairly with the party
seeking recusal, it is incumbent upon the judge to recuse him or herself. See People v. Botham, 629
P.2d 589, 595 (Colo. 1981); C.J.C. Canon 3(C)(1). A trial judge must accept the affidavits filed with the
motion as true, even though the judge believes that the statements contained in the affidavits are false
or that the meaning attributed to them by the party seeking recusal is erroneous. Johnson v. District
Court, 674 P.2d 952 (Colo. 1982). C.R.C.R 97 provides: "A judge shall be disqualified in an action in
which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material
witness, or is so related or connected with any party or his attorney as to render it improper for him to
sit on the trial, appeal, or other proceeding therein. A judge may disqualify himself on his own motion
for any of said reasons or any party may move for such disqualification and a motion by a party for
disqualification shall be supported by law. 'The motion and supporting affidavit speak for themselves
and the only question involved is whether the facts alleged are sufficient to compel the judge to
disqualify himself.' Kovacheffv Langhart, 147 Colo. 339, 343-44, 363 P.2d 702, 705 (1961). The
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motion and affidavits are legally adequate if they ’state facts from which it may reasonably be inferred
that the judge has bias or prejudice that will prevent him from dealing fairly’ with the party seeking
recusal.” People v. Botham, 629 P.2d 589, 595 (Colo. 1981).
Under South Carolina law, a judge shall be disqualified in an action in which he is interested
or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related
or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or
other proceeding therein. C.J.C. Canon 3. In the instant case, the magistrate is effectively acting as
counsel for defendants which is disqualifying and undercuts appearance of a disinterested court.
Specifically, defendants must raise or waive affirmative defenses and instead, the magistrate is
defending defendants by impermissibly raising affirmative defense(s). In the instant case, defendants
may want to be good neighbors by complying with the mitigation plan they themselves represented.
The magistrate has impermissibly foreclosed that consideration. A judge may disqualify himself on his
own motion for any of said reasons or any party may move for such disqualification. The motion and
supporting affidavit speak for themselves and the only question involved is whether, under the facts
alleged, reasonable men/women might question impartiality. Patel v. Patel, 359 S.C. 515, 599 S.E.2d
114 (S.C. 2004). The motion and affidavit are legally adequate if they state facts from which it may
reasonably be inferred that the judge has bias or prejudice that will prevent him or her from dealing
fairly with the party seeking recusal. Roche v. Young Bros., Inc., 332 S.C. 75, 504 S.E.2d 311 (1998);
Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921).
The case of Burgess v. Stern, infra, controls and provides that all orders rendered after ex
parte contacts should be vacated:
“South Carolina case law and rule-making authorities are well synchronized on the prohibition
against ex parte contacts. In Herring v. Retail Credit Co., 266 S.C. 455, 224 S.E.2d 663 (1976), the
judicial practice of merely signing an order prepared by counsel of one party was condemned. This
Court advised the Bench and the Bar that not only do such orders deprive the reviewing Court of
adequate records on appeal, but also deny to the deprived party an opportunity to be heard in matters
which affect them. Id. Aiken County v. BSP Div. OfEnvirotech Corp., 866 F.2d 661, (4°' Cir.1989),
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evinces the Fourth Circuit Court of Appeals’ disapproval of ex parte contacts of this type.... Canon
3(A)(4), Rule 501, Code of Judicial Conduct, SCACR, states: 'A judge should ..., except as authorized
by law, neither initiate or consider ex parte or other communications concerning a pending or
impending matter.’ While Canon 3(A)(4) guards against ex parte indiscretion, it also strives to
eliminate the appearance of impropriety. This issue was discussed succinctly in the case of In re:
Wisconsin Steel, 48 B.R. 753 (D.I1L1985). The Court in Wisconsin Steel noted:
It is rarely possible to prove to the satisfaction of the party excluded from the'communication that
nothing prejudicial occurred. The protestations of the participants that the communication was entirely
innocent may be true, but they have no way of showing it except by their own self-serving declaration.
This is why the prohibition [311 S.C. 331] is not against "prejudicial" ex parte communications, but
against ex parte communications. In re: Wisconsin Steel, 48 B.R. 753 (D.111.1985).”
Burgess v. Stern, 428 S.E.2d 880, 311 S.C. 326 (S.C., 1992).
As a matter of public policy, ex parte contacts are prohibited and undermine the integrity of
the judicial process, particularly where magistrates are subjected to re-elections. Former Justice Sandra
Day O'Connor warned the public about the dangers of electing judges. Former Justice Sandra Day
O’Connor wrote “... many Americans today do not see the need for independent judges. Many prefer a
judiciary that acts merely as a reflex of popular will.” Judicial Independence and 21st Century
Challenges, Sandra Day O’Connor, The Bencher, July/August 2012. As she explained, “[t]he reason
why judicial independence is so important is because there has to be a safe place where being right is
more important than being popular; where fairness triumphs strength. That place, in our country, is the
courtroom. It can only survive so long as we keep out political influences.” Id. (emphasis supplied).
Public policy, legislative intent, statutory authority, State and Federal case law, State and Federal Rules
of Civil Procedure, State and Federal Constitutional law, the South Carolina Rules of Court, and
fundamental fairness prohibit direct or indirect impermissible ex parte contacts and require recusal
under the circumstances. "The touchstone of due process is protection of the individual against
arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), or denial of
fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (the procedural
due process guarantee protects against "arbitrary takings"). County of Sacramento v. Lewis, 523 U.S.
833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). See Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743
2:20-cv-01748-RMG
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(2008) (procedural due process requires (1) adequate notice; (2) adequate opportunity for a hearing;
(3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses). See
S.C. Const, art. I, sec. 2, 3, 4, 9, 10, and 14; S.C. Const, art. V, sec. 4; S.C. Const, art. V, sec. 5; U.S.
Const., Article I, sec. 9 and 10; U.S. Const, amend. I, IV, V, VII, and XIV. See Hicks v. Feiock, 108
S.Ct. 1423, 485 U.S. 624, 99 L.Ed. 721, 56 U.S.L.W. 4347 (1988).
Accordingly, a magistrate must grant a motion for disqualification and/or recusal if the motion
and supporting affidavit(s) state facts from which it reasonably may be inferred that the magistrate has
a bias or prejudice that will prevent her from dealing fairly with the party seeking recusal. The
magistrate must accept the affidavit(s) filed with the motion as true even though the magistrate may
believe that the statements contained in the affidavits are false or that the meaning attributed to them by
the party seeking recusal is erroneous. In this case, the record reflects there is no authorization given by
defendants for representation by the magistrate; the magistrate has elected to take uninvited,
unauthorized, sua sponte action to act as counsel for defendants and against the other party. Recusal is
respectfully requested and if denied, motion for stay pending appeal is respectfully submitted.
For the reasons stated, for substantial justice affecting substantial rights, and for good cause, the
undersigned respectfully makes motion for, including but not limited to, issuance of order of
recusal/disqualification of the magistrate in this matter with abeyance request pending resolution of the
motion. If denied, motion for stay pending appeal is respectfully entered including denial of substantial
rights incapable of vindication on appeal which must be raised immediately as well as matters of great
public importance including denial of State and Federal Constitutional rights.
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CONCLUSION
For the foregoing reasons and for substantial justice affecting substantial rights, the plaintiff
respectfully requests this Honorable Court grant this motion with abeyance pending resolution. In the
alternative, if denied, motion for permission to appeal with stay pending appeal is respectfully entered.
Respectfully submitted,
Sullivans Island, SC 2
803.883.3010
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Entry Number 77
Civil Action No. 2:20-cv-01748
STATE OF SOUTH CAROLINA
)
)
)
COUNTY OF CHARLESTON
AFFIDAVIT
'
Personally came and appeared before me, Notary Public, C. Holmes, who upon being duly
sworn did depose and say the following:
1.1 am the plaintiff, of legal age, and competent to state the matters herein. This affidavit is based on
personal knowledge and on information and belief. It is submitted in support of the attached motion in
Civil Action No. 2:20-cv-01748.
.
2. The magistrate summarily dismissed before service based on affirmative defense required to be
raised or waived by the other side in Civil Action No. 2:20-cv-01748.
3. The record reflects the magistrate acts as defendants’ attorney and/or breaches the duty to be a
neutral decision-maker. Other examples available on request.
4. With lack of candor, the magistrate fails to disclose res judicata/issue preclusion in this very matter
wherein the District Court has already overruled her prior frivolous claims of frivolity regarding
nuisance and other claims herein.
5. On information and belief, the magistrate engages in unlawful retaliation for lack of consent to a
magistrate on dispositive/substantive matters.
6. Objection is respectfully entered regarding the magistrate’s lack of civility, lack of candor, and/or
what appears to be plagiarism of a former magistrate’s Report and Recommendation (R&R).
7. On information and belief, the magistrate engaged in direct or indirect impermissible ex parte
contact in this very matter.
8. Governing case law provides that impermissible ex parte contact is objectionable precisely because a
reasonable person should and would have questions regarding lack of impartiality under these facts.
9. The plaintiff is informed and believes there are serious questions including but not limited to,
appearance of impropriety, impropriety in fact, and/or lack of impartiality.
10. The plaintiff is prejudiced thereby.
2:20-cv-01748-RMG
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Entry Number 77
FURTHER THE AFFIANT SAITH NOT.
Subscribed and sworn to
Notary Public, this
me.
aiunih/y.
\
NOTARY PUBLIC
My commission expires:
PUBV k
Page 9 of 10
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Entry Number 77
Page 10 of 10
Certificate of Service
I hereby certify that defendants have not been served because defendants in 2024 still have not
been brought into this 2020 case based on affirmative defense required to be raised or waived by
defendants which is improperly asserted by the subject of the attached motions including motion to
recuse thereby undercutting appearance of a disinterested court.
Dated
PO Box 187
\
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2:20-cv-01748-RMG
Date Filed 08/08/24
Entry Number 78
Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
C. Holmes, a/k/a Cynthia Holmes, a/k/a
)
Cynthia Holmes, M.D., a/k/a Cynthia Collie )
Holmes,
)
)
Plaintiff,
)
v.
)
)
Case No. 2:20-cv-01748-RMG
)
)
Granuaile, LLC; J.P. Walsh, individually
)
and as related to Granuaile, LLC; L. Walsh, )
individually and as related to Granuaile,
)
LLC,
'
)
ORDER
)
Defendants.
)
)
Before the Court is Plaintiff’s motion to recuse Magistrate Judge Molly Cherry. (Dkt. No.
77). Plaintiff appears to challenge the impartiality of Judge Cherry because of this Court’s rulings
in this proceeding. (Id. at 3) (claiming that “[i]nthe instant case, the magistrate is effectively acting
as counsel for defendants which is disqualifying and undercuts appearance of a disinterested court
. . . [by] defending defendants by impermissibly raising affirmative defense(s).”). A judge must
recuse himself when “he has a personal bias or prejudice concerning a party.” 28 U.S.C.
§ 455(b)(1) (2018). As the Fourth Circuit has held, however, adverse “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” McClain v. Warden, Turbeville Corr.
Inst., 805 F. App'x 221, 222 (4th Cir. 2020) (affirming denial of a motion to recuse on said basis);
Liteky v. United States, 510 U.S. 540, 555 (1994)). Accordingly, because Plaintiff has failed to
2:20-cv-01748-RMG
Date Filed 08/08/24
Entry Number 78
Page 2 of 2
show “any extrajudicial source for alleged bias,” Plaintiff’s motion is denied. McClain, 805 F.
App’x at 222.
AND IT IS SO ORDERED.
s/Richard M. Gergel
Richard Mark Gergel
United States District Judge
August 8, 2024
Charleston, South Carolina
2
2:20-cv-01748-RMG
Date Filed 08/08/24
Entry Number 79
Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
C. Holmes, a/k/a Cynthia Holmes, a/k/a
)
Cynthia Holmes, M.D., a/k/a Cynthia Collie )
Holmes,
)
)
Plaintiff,
)
)
v.
)
Case No. 2:20-cv-01748-RMG
)
)
Granuaile, LLC; J.P. Walsh, individually
)
and as related to Granuaile, LLC; L. Walsh, )
individually and as related to Granuaile,
)
LLC,
)
ORDER AND OPINION
)
Defendants.
)
)
Before the Court is the Report and Recommendation (R&R) of the Magistrate Judge
recommending Plaintiff’s case be dismissed as frivolous because it is barred by res judicata. (Dkt.
No. 75 at 5). Plaintiff did not file any objections, but separately moved this Court to recuse
Magistrate Judge Cherry. (Dkt. No. 77). This Court denied that motion. (Dkt. No. 78). For the
reasons set forth below, the Court adopts the R&R as the Order of the Court.
I.
Introduction
This action arises from Plaintiffs claims of trespass, nuisance, negligence and unjust
enrichment against Defendants. Plaintiff asserted identical causes of action as she previously
levied against the same Defendants, which were adjudged on the merits by a district court. (Dkt.
No. 75 at 2 (citing Holmes v. Granuaile, LLC, No. 2:16-3969-BHH-BM (D.S.C.) (^‘Holmes I”}).
The Magistrate Judge recommended dismissal of the case on res judicata grounds (Dkt. No. 17),
2:20-cv-01748-RMG
Date Filed 08/08/24
Entry Number 79
Page 2 of 3
which the District Judge adopted. (Dkt. No. 29). Plaintiff unsuccessfully appealed the dismissal
of her case to the Fourth Circuit and was afforded the opportunity to file an Amended Complaint,
(Dkt. Nos. 43, 47), which is presently before this Court. (Dkt. No. 50).
IL
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making
a de novo determination only 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. 28 U.S.C.
§ 636(b)(1). In the absence of specific objections, the Court reviews the Report for clear error.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in 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.’”) (quoting Fed. R. Civ. P. 72 advisory committee's note).
III.
Discussion
Upon review of Plaintiff s Amended Complaint, the Magistrate Judge ably determined that
Plaintiffs claims are barred by res judicata. “To establish res judicata, three elements must be
shown: (1) identity of the parties; (2) identity of the subject matter; and (3) adjudication of the
issue in the former suit.” Riedman Corp. v. Greenville Steel Structures, Inc., 419 S.E.2d 217, 218
(S.C. 1992). This Court finds no clear error with the R&R’s establishment of these three factors,
2
2:20-cv-01748-RMG
Date Filed 08/08/24
Entry Number 79
Page 3 of 3
and adopts the R&R’s conclusion that Plaintiffs claims are barred by res judicata and subject to
summary dismissal on this basis. (Dkt. No. 75 at 9.).
To the extent Plaintiffs motion for recusal could be liberally construed as an objection to
the R&R, Plaintiff objects not to the finding that res judicata bars her claims, but to the fact that
the Magistrate Judge - rather than defense counsel - invoked the doctrine. (Dkt. No. 77). Because
the ability of a court to dismiss a case on res judicata principles sua sponte is well-supported by
case law in this Circuit, Plaintiffs objection is overruled. (Dkt. No. 75 at 6, 9-10) (collecting
cases); see, e.g., Brown v. South Carolina, No. 3:13- 2983-MBS-P.TG, 2014 WL 4826152, *2
(D.S.C. Sept. 24, 2014), aff’d, 589 F. App’x 190 (4th Cir. 2015); aul v. de Holczer, No. 3:15—
2178-CMC-PJG, 2015 WL 4545974, *6 (D.S.C. July 28, 2015), aff’d, 631 F. App’x 197 (4th Cir.
Feb. 4, 2016); Cottle v. Bell, No. 00-6367, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000).
IV.
Conclusion
In light of the foregoing, the Court ADOPTS the R&R (Dkt. No. 75) as the Order of the
Court and DISMISSES Plaintiffs Amended Complaint (Dkt. No. 50) without issuance and
service of process and without leave to amend.
AND IT IS SO ORDERED.
s/ Richard M. Gergel
Richard Mark Gergel
United States District Judge
August 8, 2024
Charleston, South Carolina
3
2:20-cv-01748-RMG
Date Filed 08/21/24
Entry Number 83
Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
C. Holmes, a/k/a Cynthia Holmes, a/k/a
)
Cynthia Holmes, M.D., a/k/a Cynthia Collie )
Holmes,
)
)
Plaintiff,
)
)
v.
)
Case No. 2:20-cv-01748-RMG
)
)
Granuaile, LLC; J.P. Walsh, individually
)
and as related to Granuaile, LLC; L. Walsh, )
individually and as related to Granuaile,
)
LLC,
)
Defendants.
)
ORDER
.
)
This matter comes before the Court on Plaintiffs motion to recuse the undersigned for
alleged bias and impartiality following the Court adopting the Report and Recommendation of the
Magistrate Judge dismissing this action on the basis that the action was barred by res judicata.
(Dkt. No. 82). Plaintiff further seeks to hold all time limits in abeyance and for a hearing to address
his motion to recuse. {Id. at 3-4). In support of her motion, Plaintiff has filed an affidavit in support
of her motion to recuse, asserting that the undersigned is “unfamiliar with the matter, badly
misinformed, impermissibly subject to direct or indirect ex parte contact, and enticed into
engineering censorship and another improper default . . . (Dkt. No. 82 at 17). Plaintiff provides
no facts to support her allegations of ex parte contacts or any other aspects of her motion to recuse.
By way of background, Plaintiff, acting pro se, brought identical causes of action in a 2016
action against the same defendants in this case. A magistrate judge recommended that summary
2:20-cv-01748-RMG
Date Filed 08/21/24
Entry Number 83
Page 2 of 3
judgment be granted because Plaintiff failed to state a claim upon which relief could be granted.
Holmes v. Granuaile, LLC., C.A. No. 2:16-3969-BHH, Dkt. No. 124. The District Court adopted
the Report and Recommendation of the Magistrate Judge as the Order of the Court and dismissed
this action. Holmes v. Granuaile LLC, 2019 WL 350391 (D.S.C. 2019). The Fourth Circuit
dismissed the appeal, finding that by untimely filing her objections to the Report and
Recommendation, she had waived her right to appeal. The Fourth Circuit then affirmed the order
of the District Court. Holmes v. Granuaile, LLC, 778 Fed. Appx. 222 (4th Cir. 2019).
Plaintiff thereafter refilled essentially the same action with the same parties in 2020. The
Magistrate Judge recommended that the present case be dismissed on the basis of res judicata.
(Dkt. No. 17).
United States District Judge Bruce Hendricks adopted the Report and
Recommendation as the Order of the Court and dismissed the action without prejudice. (Dkt. No.
29). Judge Hendricks subsequently denied Plaintiffs motion for reconsideration. (Dkt. No. 35).
Plaintiff again appealed the adverse decision to the Fourth Circuit, which dismissed the action as
interlocutory and indicated that since the lower court case remained open Plaintiff could potentially
file an amended complaint. (Dkt. No. 43). Plaintiff then filed a petition for a writ of certiorari to
the United States Supreme Court, which was denied on November 7, 2022. (Dkt. No. 65).
Plaintiff filed an amended complaint in this action. (Dkt. No. 50). On July 1, 2024, this
case was reassigned to the undersigned. (Dkt. No. 72). The matter was referred to the Magistrate
Judge, which recommended on July 17, 2024 that the action be dismissed on the basis of res
judicata. (Dkt. No. 75). Plaintiff then moved to recuse the Magistrate Judge for alleged bias but
filed no objections to the Report and Recommendation. (Dkt. No. 77). The Court entered orders
on August 8, 2024 denying Plaintiffs motion to recuse the Magistrate Judge and adopting the
2
2:20-cv-01748-RMG
Date Filed 08/21/24
Page 3 of 3
Entry Number 83
Report and Recommendation that the present action be dismissed on the grounds of res judicata.
(Dkt. Nos. 78, 79). The case file was closed on August 8, 2024. (Dkt. No. 80).
On August 19, 2024, Plaintiff moved to recuse the undersigned for alleged bias, plainly
based on this Court’s ruling dismissing this action. (Dkt. No. 82). Plaintiff also alleged this Court
had “direct or indirect ex parte contact” while offering no evidence to support this allegation. (Id.
at 17). It is well settled that prior judicial rulings “almost never constitute a valid basis for a bias
or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Further, unsupported
allegations of ex parte communications which have no basis in fact cannot form a proper basis for
recusal.
Plaintiff s motions to recuse, conduct a hearing, and hold all time limits in abeyance (Dkt.
No. 82) are denied.
AND IT IS SO ORDERED.
s/ Richard M. Gergel
Richard Mark Gergel
United States District Judge
August 20, 2024
Charleston, South Carolina
-
3
2:20-cv-01748-RMG
Date Filed 09/04/24
Entry Number 86
Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
C. Holmes, a/k/a Cynthia Holmes, a/k/a
)
Cynthia Holmes, M.D., a/k/a CynthiaCollie )
Holmes,
)
)
Plaintiff,
)
<
v.
)
)
Case No. 2:20-cv-01748-RMG
)
)
Granuaile, LLC; J.P. Walsh, individually
)
and as related to Granuaile, LLC; L. Walsh, )
individually and as related to Granuaile,
)
LLC,
)
ORDER
)
Defendants.
)
. )
The Court dismissed this action on August 8, 2024, adopting the Report and
Recommendation of the Magistrate Judge recommending that the case be dismissed as frivolous
.because it was barred by the doctrine of res judicata. (Dkt. No. 79). On that same date, the Court
denied Plaintiffs motion to recuse the Magistrate Judge for alleged bias. (Dkt. No. 78). Plaintiff
thereafter filed a motion to recuse the undersigned for alleged bias. (Dkt. No. 82). The Court
denied the motion and denied the Plaintiffs request to hold all time limits in abeyance. (Dkt. No.
83). The case was then closed.
On September 3, 2024, Plaintiff filed another motion, asserting again the alleged bias of
the Magistrate Judge and this Court and rearguing the ruling of the Court that this present action
was barred by res judicata. The Court liberally construes this motion as a motion to reconsider.
Reconsideration is appropriate in the following limited circumstances: (1) an intervening change
2:20-cv-01748-RMG
Date Filed 09/04/24
Entry Number 86
Page 2 of 2
in controlling law; (2) new evidence not previously available; (3) clear error; or (4) prevent
manifest injustice. Zinkland v. Brown, 478 F.3d 635, 637 (4th Cir. 2007). Plaintiff’s motion (Dkt.
No. 85) fails to meet this standard and is, consequently, DENIED. The Clerk is instructed to
accept no further filings of the Plaintiff in this action.
AND IT IS SO ORDERED.
s/ Richard M. Gergel
Richard Mark Gergel
United States District Judge
September 4, 2024
Charleston, South Carolina
2
FILED: April 29, 2025
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1868
(2:20-cv-01748-RMG)
C. HOLMES, a/k/a Cynthia Holmes, a/k/a Cynthia Collie Holmes
Plaintiff - Appellant
v.
GRANUAILE, LLC; J. P. WALSH, individually and as related to Granuaile,
LLC; L. WALSH, individually and as related to Granuaile, LLC
Defendants - Appellees
ORDER
The court denies the petitions for rehearing and the motion to exceed the
length limitation.
Entered at the direction of the panel: Judge Niemeyer, Judge Richardson,
and Judge Benjamin.
For the Court
/s/ Nwamaka Anowi, Clerk
■A
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