von Fox v. College of Charleston
ORDER AND OPINION adopting in part, declining to adopt in part 40 Report and Recommendation; granting in part and denying in part 8 Motion to Dismiss. The Court DISMISSES WITHOUT PREJUDICE the complaint (Dkt. No. 1-1). Signed by Honorable Richard M Gergel on 7/10/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Glynndeavin van Fox,
College of Charleston,
Civil Action No. 2: 17-483-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendant' s motion to dismiss be granted and that the complaint be
dismissed with prejudice. For the reasons set forth below, the Court adopts in part and declines to
adopt in part the Report and Recommendation. The complaint is dismissed without prejudice.
Plaintiff, who is not a student at the College of Charleston, has sued the College because
he received a trespass notice. According to Plaintiff, the ostensible reason for the trespass notice
was an accusation that he was sleeping in a Starbucks located within a library. Plaintiff claims
that accusation is false and that the real reason he was barred from College property is his "national
origin name and Native American status." (Dkt. No. 1-1 at 5.) Plaintiff filed suit in the Charleston
County Court of Common Pleas on December 13, 2016, seeking $150,000 in damages. Although
Plaintiff did not explicitly plead any federal cause of action, on February 17, 2017, Defendant
timely removed based on Plaintiffs references to harassment based on national origin. Plaintiff
consented to removal. (Dkt. No. 5.) On February 24, 2017, Defendant moved to dismiss. The
Magistrate Judge recommended granting the motion to dismiss on June 21 , 2017. Plaintiff timely
objected to the Report and Recommendation. (Dkt. No. 42.)
Report and Recommendation
The Magistrate Judge makes only a recommendation to this 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 nova
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(l). When a proper objection is made to a particular issue,
"a district court is required to consider all arguments directed to that issue, regardless of whether
they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir.
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the
allegations constitute ' a short and plain statement of the claim showing that the pleader is entitled
to relief. '" Republican Party ofNC. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks
and citation omitted). In a Rule 12(b)( 6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P 'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in a light most favorable to the nonmoving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
Defendant moves to dismiss on two bases: (1) under Rule 12(b)(l) of the Federal Rules of
Civil Procedure because the College of Charleston is protected by sovereign immunity, and (2)
under Rule 12(b)(6) because the complaint fails to state a plausible claim for relief. For the reasons
set forth below, the Court denies the motion under Rule 12(b)(l) but grants it under Rule 12(b)(6).
The Magistrate Judge recommends dismissal of the College of Charleston as a party based
on Eleventh Amendment immunity, because the College of Charleston is an alter ego of the state
and therefore is immune from suits in federal court brought by private parties to recover money
damages. (Dkt. No. 40 at 7-9.) That recommendation, however, is erroneous because removal
waives the state's Eleventh Amendment immunity. Lapides v. Ed. of Regents of Univ. Sys. of Ga.,
535 U.S. 613, 624 (2002). The Court therefore declines to adopt Part III.A of the Report and
Failure to State a Claim
As the Magistrate Judge observes, Plaintiff's complaint appears to allege that the trespass
notice was a "false statement" in violation of S.C. Code § 16-3-1280, which makes it a
misdemeanor to file a false claim or false statement in connection with a claim under South
Carolina's Victim ' s Compensation Act. Plaintiff cannot bring a civil action for relief under a state
criminal statute. See S.C. Code Ann. § 17-1-10. Moreover, Plaintiff does not allege that the
College of Charleston made any false statement in connection with a claim under the Victim ' s
Compensation Act. His characterization of a trespass notice as a false statement fails to suggest
any violation of his constitutional rights. And to the extent Plaintiff means to bring a§ 1983 claim,
a state university is an agency of the state and is not a "person" for purposes of 42 U.S.C. § 1983 .
See Will v. Mich. Dep 't of State Police , 491 U.S . 58, 64- 65 (1989).
Further, Plaintiffs complaint is nonsensical. Plaintiff regularly files incoherent pleadings.
In 2016, Plaintiff filed at least 21 cases with this Court, all of which were summarily dismissed. 1
See, e.g., Civ. Nos. 2:16-98 ; 2:16-106; 2:16-131; 2:16-132; 2:16-136; 2:16-179; 2:16-180; 2:16181; 2:16-182; 2:16-183; 2:16-184; 2:16-185 ; 2:16-186; 2:16-197; 2:16-188; 2:16-209; 2:16-225 ;
2: 16-227; 2: 16-228; 2: 16-394. His response to the motion to dismiss in this case consists of 362
pages of bizarre arguments and documents, including a complaint to the Secretary General of the
United Nations "to inform of the solidity of the peonage of the State of South Carolina regarding
federal court district allowance of travel for Business Related Income Travel in order to pay bills
in the capitalist county of the United States of America." (Dkt. No. 37.) Plaintiffs objections to
the Report and Recommendation are similarly absurd. (See Dkt. No. 42.)
The Magistrate Judge's recommendation that the complaint therefore be dismissed with
prejudice is understandable but the Court must decline that recommendation. Although the claims
asserted in this particular suit manifestly are without merit, as a rule it is inappropriate to dismiss
The Report and Recommendation states Plaintiff "is currently subject to a filing injunction in
federal court." (Dkt. No. 40 at 3.) That is slightly inaccurate. Plaintiff is barred from filing any
action in this Court without full payment of filing fees, because his informa pauperis applications
disclosed substantial assets, but he is not subject to a pre-filing injunction.
with prejudice the claims of a pro se plaintiff where substantial questions exist regarding the
plaintiffs competence. See Fed. R. Civ. P. l 7(c); Yoder v. Pat/a, 234 F.3d 1275 (7th Cir. 2000);
Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989). The Court generally is not required to
undertake a sua sponte collateral inquiry into the competence of a civil litigant, see Hudnall v.
Sellner, 800 F.2d 377, 386 (4th Cir. 1986), but, as the Magistrate Judge notes, the record of this
case and the record of other actions brought by Plaintiff contain ample evidence of Plaintiffs
serious psychological issues, including his paranoid schizophrenia diagnosis and civil
commitment. (See, e.g., Dkt. Nos. 15-2 at 8, 15-4 at 119-20, 40 at 4 n.3; von Fox v. Med. Univ.
of SC , Civ. No. 2:16-179-RMG (D.S.C., Dkt. No. 1at10).) The Court therefore dismisses the
complaint without prejudice.
For the foregoing reasons, the Court ADOPTS IN PART AND DECLINES TO ADOPT
IN PART the Report and Recommendation of the Magistrate Judge (Dkt. No. 40), GRANTS IN
PART AND DENIES IN PART the motion to dismiss (Dkt. No. 8), and DISMISSES
WITHOUT PREJUDICE the complaint (Dkt. No. 1-1).
AND IT IS SO ORDERED.
Richard Mark ergel
United States District Court Judge
July tO, 2017
Charleston, South Carolina
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