Smith v. Wiggins

Filing 7

ORDER adopting re 4 Memorandum and Recommendations. Signed by District Judge Terrence W. Boyle on 4/1/2021. (Pro se party has consented to receiving electronic service of all motions, notices, orders, and documents in civil cases in the Eastern District of North Carolina.) (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:21-CV-9-BO
ROGER VANN SMITH,
Plaintiff,
V.

NEIL F. WIGGINS , Clerk of Superior Court,
Gates County,
Defendant.

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ORDER

This matter is before the Court on the Memorandum and Recommendation (M&R) of
United States Magistrate Judge Robert B. Jones, Jr. [DE 4]. Plaintiff has filed an objection to the
M&R [DE 6], and the matter is ripe for review. For the reasons discussed below, the Court
adopts the M&R in its entirety and plaintiffs complaint is dismissed for failure to state a claim.
BACKGROUND
On December 13, 1963, Mollie H. Welch retained Philip P. Godwin, Sr. for the
preparation of her estate. DE 5, 5. The will called for the co-executors to retain the Godwin Law
Firm to assist in the administration of Welch's estate and gave each of Welch's eight children, or
their heirs, a one-eighth interest in common in the estate. Id. Following Welch's death on July
13 , 1969, the executrix retained the Godwin Law Firm to assist with leasing the estate's
farmland. Id. Plaintiff alleges that the Godwin Law Firm never brought any legal action to "quiet
title" but is attempting to partition sell part of Welch's estate. Id. Plaintiff seeks to enjoin the
partition sale by defendant and asks for damages in excess of $75 ,000. Id. at 4- 5.

DISCUSSION
A district court is required to review de novo those portions of an M&R to which a party
timely files specific objections or where there is plain error. 28 U.S.C. § 636(b)(l) ; Thomas v. Arn,
474 U.S . 140, 149- 50 (1985). " [I]n the absence of a timely filed objection, a district court need
not conduct de novo review, but instead must only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation ." Diamond v. Colonial Life & Acc. Ins.

Co. , 416 F.3d 3 10, 3 15 ( 4th Cir. 2005 ) (internal quotation and citation omitted). The di strict court
is only required to make a de novo determination of those specific find ings to which the plaintiff
has actually objected. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Here, plaintiff has
fi led an objection, citing the history of the Civi l Rights Act and asserting that "defendant's failure
to dismiss the underlying case will irreparably harm the Welch estate ' s ability to hold its
inheritable property hold ings for its heirs apparent for their peacefully [sic] enjoyment, but for acts
of systematic racial discrimination by the plai nti ffs" in the underlying case. DE 6.
Section 1982 of the Civil Rights Act of 1866 establishes the right "to inherit, purchase,
lease, sell , ho ld, and convey real and personal property" free of race discrimination. 42 U.S .C. §
1982. "To establi sh a claim under the statute, pl aintiff must allege that (1) he is a racial minority;
(2) that defendant intended to discriminate on the basis of race; and (3) the discrimination
concerned activities listed in Section 1982, nan1ely the inheritance, purchasing, leasing, selling,
holding, and conveyance of real and personal property." Brown v. Winman , No. 5:15-CV-59-BO,
20 17 U.S . Dist. LEXIS 33705 , at *10 (E.D .N .C. Mar. 8, 20 17) (citation omitted). Plaintiff, in his
objection, alleges rac ial discrimination on the part of defendant for failing to dismiss a prior
lawsuit, but does not provide any factua l support showing that defendant intentionally
discriminated on the basis of the race. Therefore, plaintiff has failed to plead sufficient facts

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demonstrating a plausible claim that defendant intended to discriminate against him on the basis
of race, and plaintiffs complaint is dismissed . See Lewis v. Bent, No. 4:16-CV-79-FL, 2018 U.S.
Dist. LEXIS 150827, at * 11 (E.D .N.C. Sept. 5, 2018) (finding that plaintiffs race discrimination
claims failed when the complaint only included "unsupported and conclusory allegations");
Ashcroft v. Iqbal, 556 U.S. 662, 694 (2009) (holding that allegations of discriminatory that are

conclusory "are not entitled to be assumed true") (internal quotations omitted); Bass v. E.I. DuPont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003), cert denied, 540 U.S. 940 (2003) ("[W]hile

a plaintiff is not charged with pleadings facts sufficient to prove [his] case, as an evidentiary matter,
in [his] complaint, a plaintiff is required to allege facts that support a claim for relief. ").
CO CLUSION
The M&R of Judge Jones is ADOPTED. [DE 4]. Plaintiffs application to proceed informa
pauperis is GRANTED and plaintiffs complaint is DISMISSED because plaintiff fails to plead

sufficient facts demonstrating a plausible claim. The Clerk is DIRECTED to close the case.
SO ORDERED, this the

_j_ day of April , 2021 .
TE
NCE W. BOYLE
UNITED STATES DISTRICT J

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