Wyman et al v. Chellis et al

Filing 37

ORDER AND OPINION ADOPTING 35 THE REPORT AND RECOMMENDATION of Magistrate Judge Bristow Marchant. Plaintiffs' Amended Complaint is dismissed without prejudice and without issuance of service of process. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 2/21/2018. (sshe, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Patrice Wyman, an Asiatic Indigenous
American Native Woman;
Julius Wyman, Jr. , an Asiatic
Indigenous American Native Man,

Plaintiffs,
V.

Mr. James E. Chellis, Master-in-Equity
Dorchester County South Carolina;
Ms. Margret L. Bailey, Register of Deeds
Dorchester County South Carolina;
Jason M. Tarah, SC BAR #7283 7; Nicole
Shlomoy, Paralegal; Joseph Pensahene,
CEO, President, Director Selene Finance,
LP; Selene Finance LP; First Federal
Bank, Charleston, SC; South State Bank,
N Charleston, SC; Dorchester County
South Carolina; Dorchester County Sheriffs
Office, The Geheren Firm, PC; Mr. Steve
Woodward, Real Estate Agent;
Wells Fargo Bank; Charleston
Homes for You,
Defendants.

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Case No.: 2: 17-cv-2946

ORDER AND OPINION

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This matter is before the Court on the Report and Recommendation (" R. & R.") of the
Magistrate Judge (Dkt. No . 35) recommending that the Court dismiss Plaintiffs' Amended
Complaint without prejudice and without issuance of service of process. For the reasons set forth
below, the Court adopts the R. & R. as the order of the Court.
I.

Background and Relevant Facts

The Court adopts the facts as outlined in the R. & R. (Dkt. No. 35 at 2-3.) The record
shows that a judgment of foreclosure was entered against Plaintiffs by the Master-in-Equity for
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Dorchester County, South Carolina on September 14, 2017. Plaintiffs later learned that their
property had been sold to Defendant Steve Woodard, a real estate investor. Woodard ordered
Plaintiffs to vacate the property and stated that he would seek an order of eviction if they failed
to vacate. (Id.) Plaintiffs filed an Amended Complaint alleging that Defendants lack the authority
to bring the state foreclosure action and other claims including fraudulent misrepresentation,
unfair trade practices, conversion, trespass to chattels, and inland piracy. (Dkt. No. 7 at 18-29.)
II.

Legal Standard

This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't of Social Services, 901F.2d387 (4th Cir. 1990).
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. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).

III.

Discussion

The Magistrate Judge liberally construed the Amended Complaint to consider Plaintiffs'
possible theories of relief and recommended that this Court dismiss the action after determining
that Plaintiffs failed to provide a basis for federal court jurisdiction. The Magistrate Judge

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provided several reasons in support of this recommendation, including, but not limited to (1) that
although Plaintiffs listed several federal criminal statutes in their Amended Complaint, they did
not argue that any of those statutes creates a private cause of action or allege facts that would
support such a claim; (2) that, to the extent Plaintiffs seek to have Defendants criminally
prosecuted, Plaintiffs have no constitutional right or judicially cognizable interest in such
prosecutions; (3) that Plaintiffs' Section 1986 claim is subject to dismissal because they failed to
meet the heightened pleading standard for Section 1985(3) conspiracy claims; and (4) that, to the
extent Plaintiffs are seeking review, appeal, or injunction with respect to the final judgment or
other orders in the state court foreclosure action, they are not entitled to relief pursuant to the
Rooker-Feldman Doctrine, the doctrine established in Younger v. Harris, 401 U.S. 37, 91 (1971),
and the Anti-Injunction Act.
No party has filed objections to the R. & R., and the deadline to file objections has
passed. In the absence of any specific objections, "a district court need not conduct a de nova
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." See Diamond v. Colonial Life & Accident Ins. Co. , 416
F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). This Court finds that the Magistrate
Judge has correctly applied the controlling law to the facts of this case.
IV.

Conclusion

For the reasons set forth above, the Court adopts the R. & R. (Dkt. No. 35) as the order of
the Court. Plaintiffs' Amended Complaint is dismissed without prejudice and without issuance of
service of process.

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AND IT IS SO ORDERED.

United States District Court Judge
February C (
, 2018
Charleston, South Carolina

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