Singletary v. South Carolina Department of Education et al

Filing 75

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATIONS adopting in part 67 Report and Recommendations, granting in part as to the Title VII and § 1983 claims and denying as moot as to the remaining claims. Plaintiff 9;s Title VII and § 1983 claim against Defendant SCDE are hereby dismissed with prejudice re 20 Motion to Dismiss for Failure to State a Claim by SCDE denying 71 Motion for Recusal, Motion to Stay filed by John G Singletary, Jr, granting in part as to the Title VII claim and denied as moot as to the remaining claims. Plaintiff's Title VII claim against Defendant Covey is hereby dismissed with prejudice re 40 Motion to Dismiss filed by Dan Covey, denying as moot 34 Motion to Dis miss for Failure to State a Claim, filed by Cherry Bekeart and Holland LLP, denying as moot 60 Motion to Stay, filed by John G Singletary, Jr, denying as moot 27 Motion to Dismiss for Failure to State a Claim, filed by Elliott Davis LLC, Laurie Sm ith. The court grants Plaintiff's request to amend his complaint as to the remaining claims. Any amended complaint must be filed within twenty-one days of the filing of this order.The matter is recommitted to the Magistrate Judge foradditional review and a Report and Recommendation. Magistrate Judge Bruce Howe Hendricks added.. Signed by Chief Judge Margaret B Seymour on 2/29/2012. Motions referred to Bruce Howe Hendricks.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
John G. Singletary, Jr., d/b/a Singletary
Tax Services,
Plaintiff,
vs.
South Carolina Department of Education
(First Steps), Dan Covey (Procurement
Officer), Cherry Bekaert & Holland LLP,
Alan Robinson, Elliot Davis LLC, Laurie
Smith, all collectively and individually
and others to be named,
Defendants.

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C.A. No. 3:11-1449-MBS-BHH

ORDER AND OPINION

Plaintiff John G. Singletary, Jr. (“Plaintiff”) brought this pro se action pleading numerous
federal and state law claims related to unlawful procurement. In accordance with 28 U.S.C. §
636(b)(1)(A) and Local Rule 73.02(B)(2)(g), D.S.C., the action was referred to United States
Magistrate Judge Bruce H. Hendricks for review of pretrial matters. This matter is before the
court on Defendants’ various motions to dismiss (ECF Nos. 20, 27, 34, 40), Plaintiff’s motion to
stay (ECF No. 60), Plaintiff’s motion for recusal and stay (ECF No. 71), and Plaintiff’s request
to amend the pleadings, which is set forth in his objections to the Magistrate Judge’s Report and
Recommendation (ECF No. 71).
Background
In or around May 2011, the South Carolina Materials Management Office (“MMO”)
sought to procure accounting services for Defendant South Carolina Department of Education’s
First Steps County Partnerships program (“SCDE”) pursuant to S.C. Code Ann. § 11-35-1530.
Originally, MMO issued a request for proposal (“RFP”) with an opening bid date and time of

May 9, 2011 at 2:30 p.m. Subsequently, MMO issued an amended RFP that provided an
opening bid date and time of May 7, 2011 at 2:30 p.m. Plaintiff submitted a timely bid in
response to the RFP. On May 31, 2001, MMO posted its intent to award two accounting service
contracts to Defendants Cherry Bekaert and Holland, LLP and Alan Robinson, a partner thereof
(collectively referred to as “CB&H”) and Defendants Elliott Davis LLC and Laurie Smith, a
member thereof (collectively referred to as “Elliott Davis”). By letter dated June 7, 2011,
Plaintiff filed a bid protest pursuant to S.C. Code Ann. § 11-35-4210(2)(b) with the appropriate
Chief Procurement Officer (“CPO”), challenging MMO’s intent to award the accounting service
contracts to Defendants CB&H and Elliott Davis. On June 14, 2011, Plaintiff filed the instant
complaint, alleging that Defendants conspired to prevent Plaintiff from acquiring the state
contract for accounting services in violation of the South Carolina Procurement Code and
various federal laws. Plaintiff alleged that Defendant Dan Covey (“Covey”) did not adhere to
various guidelines related to administering the bid process and unlawfully tampered with
documents involved in the bid process. Subsequently, Defendants filed their respective motions
to dismiss (ECF Nos. 20, 27, 34, 40). On November 18, 2011, Plaintiff filed a motion to stay the
action “until this court adjudicates the matter on the merits” (ECF No. 60).
On February 3, 2012, the Magistrate Judge filed a Report and Recommendation in which
she recommended that the complaint against Defendants CB&H and Elliott Davis be dismissed
with prejudice for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, because Plaintiff alleged no facts connecting any of these Defendants to the alleged
“bid rigging.”

The Magistrate Judge noted that Plaintiff appeared to make generalized

accusations concerning the involvement of these Defendants in a conspiracy, but did not specify
any facts as to what their involvement was beyond being the recipients of the state contracts.

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The Magistrate Judge explained that permitting Plaintiff to cure the complaint as to these
Defendants by way of amendment would be an improvident solution, because Plaintiff had
already amended the complaint once. The Magistrate Judge noted that the allegations in the
amended complaint as well as Plaintiff’s responses to the Defendants’ respective motions to
dismiss were not any more developed than the insufficient allegations in Plaintiff’s original
complaint.
The Magistrate Judge also recommended that Plaintiff’s federal claims pursuant to the
Sherman Anti-Trust law, Clayton Antitrust Act, the Federal Trade Commission Act of 1914, The
Robinson-Patman Act of 1936, and the Interstate Commerce Act of 1887 be dismissed with
prejudice because Plaintiff failed to allege what facts implicated these statutes or which statutory
provisions were allegedly violated.
As to Plaintiff’s Title VII claim against Defendants SCDE and Covey, the Magistrate
Judge found that Plaintiff failed to allege a sufficient employment relationship as required under
Title VII. She explained that Plaintiff, as a bid contractor, is not an employee or applicant for
employment, but rather an independent contractor. Furthermore, the Magistrate Judge found that
Plaintiff failed to exhaust remedies as required with regard to his Title VII claim. As such, the
Magistrate Judge found that Plaintiff’s Title VII claims were barred as a matter of law and
recommended that the Title VII complaint be dismissed with prejudice as to these Defendants.
As to Plaintiff’s 28 U.S.C. § 1983 claims against Defendants SCDE and Covey, the
Magistrate Judge found that SCDE, as a state agency, is not a person under § 1983 and is
therefore not a proper party. Further, the Magistrate Judge found that Defendant Covey was
being sued in his official capacity for actions within the scope of his employment, and therefore,
the suit against Covey was an impermissible suit against the State itself.

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However, the

Magistrate Judge found that even if Plaintiff had made a claim against Defendant Covey in his
individual capacity, Plaintiff’s allegations that Covey was less than responsive in providing
information or otherwise communicating about the bid process are not constitutionally
cognizable and therefore, qualified immunity would shield Defendant Covey.

Thus, the

Magistrate Judge recommended dismissing Plaintiff’s § 1983 claims against both of these
Defendants with prejudice.
Lastly, the Magistrate Judge denied Plaintiff’s motion to stay and recommended that the
court decline jurisdiction over the remaining state law claims and dismiss them without
prejudice. On February 14, 2012, Plaintiff filed objections to the Report and Recommendation
that were styled “Plaintiffs Response to Magistrates Report and Recommendation” and “Motion
for Recusal and Stay of Proceedings.” On February 21, 2012, Defendant CB&H filed a response
to Plaintiff’s objections. On February 23, 2012, Defendant Elliott Davis filed a response to
Plaintiff’s objections.
Analysis
Standard of Review
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de
novo determination of any portions of the Magistrate Judge’s Report to which a specific
objection is made.

The court may accept, reject, or modify, in whole or in part, the

recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1). The district court need not conduct a de novo
review when a party makes only general and conclusory objections that do not direct the court to

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a specific error in the Magistrate Judge’s proposed findings and recommendations. Orpiano v.
Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
Motion for Recusal
Plaintiff first alleges that the Magistrate Judge should be recused because she was not an
impartial and detached arbiter of facts. Plaintiff alleges that the Magistrate Judge failed to
consider the changes appearing in the evaluation bid sheets as evidence of unlawful conduct in
violation of the state and federal laws cited. Next, Plaintiff alleges that the Magistrate Judge
ridiculed Plaintiff’s case with remarks regarding Plaintiff’s efforts to present and develop the
case. Next, Plaintiff alleges that the Magistrate Judge failed to mention the exact language of the
MMO procurement bid guidelines in her Report and Recommendations, which stated that the
bids “must” be opened publicly and in the presence of one or more witnesses at the time and
place designated in the invitation for bids. Next, Plaintiff alleges that the Magistrate Judge
rejected concrete proof that the procurement officer illegally altered documents. Plaintiff also
alleges that the Magistrate Judge displayed partiality by labeling the end of the Report and
Recommendation “Conclusion and Recommendation,” so as to signal a final judgment with no
possibility for recourse.
Lastly, Plaintiff states that there is an appearance of impropriety in his case because the
SCDE is a party to the case and Magistrate Judge Hendricks serves on an educational board.
Further, Plaintiff alleges that Magistrate Judge Hendricks has donated to the College of
Charleston and that since the College of Charleston is allegedly connected with the South
Carolina Department of Education, the Magistrate Judge should have recused herself.
Judicial recusals are governed by a framework of interlocking statutes. Belue v.
Leventhal, 640 F.3d 567, 572 (4th Cir. 2011). Under 28 U.S.C. § 455(a), all judges of the United

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States have a general duty to disqualify themselves in any proceeding in which their impartiality
might reasonably be questioned. Under § 455(b), Congress offers a list of other situations
requiring recusal, including where a judge has a personal bias or prejudice concerning a party or
when he has a financial interest in the subject matter in controversy that could be substantially
affected by the outcome of the proceedings. However, bias or prejudice generally must be based
on something other than what the judge has learned from his participation in the case. Id. (citing
Liteky v. United States, 510 U.S. 540, 545 n.1 (1994)). The Supreme Court explained that
opinions formed by the judge on the basis of facts introduced or events occurring in the course of
the current proceeding, or of prior proceedings almost never constitute a valid basis for a bias or
partiality motion. Liteky, 510 U.S. at 554. Also, judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion. Id. at 555. Furthermore, judicial remarks that are
critical or disapproving of, or even hostile to counsel, the parties, or their cases ordinarily do not
support a bias or partiality challenge. Belue, 640 F.3d at 573 (citing Liteky, 510 U.S. at 554).
In order to achieve recusal based on in-trial predispositions or bias, judicial conduct must
be egregious and the party seeking recusal must overcome a high bar. See United States v.
Antar, 53 F.3d 568 (3d Cir. 1995) (where the court held that recusal was justified because the
judge stated that his objective in the case from day one had been to recover funds that the
defendants had taken from the public); see also Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888
(8th Cir. 2009) (where recusal was appropriate because the judge directed profanities at Plaintiffs
or Plaintiffs’ counsel over fifteen times and refused to allow Plaintiffs to present their argument
at the sanctions hearing). “While recusal motions serve as an important safeguard against truly
egregious conduct, they cannot become a form of brushback pitch for litigants to hurl at judges
who do not rule in their favor.” Belue, 640 F.3d at 574.

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There is no merit in Plaintiff’s allegation that the Magistrate Judge is a bias arbiter simply
because she failed to consider certain pieces of evidence in her Report and Recommendation.
The Magistrate Judge’s decision regarding what pieces of evidence to consider in her Report and
Recommendation is essentially a judicial ruling that is not ordinarily a valid basis for a bias or
partiality motion. Similarly, Plaintiff’s objection that the Magistrate Judge failed to describe
certain pieces of evidence with specificity in her Report and that she labeled her recommendation
section as “conclusion and recommendation” is not appropriately evidence of bias.

Next,

Plaintiff’s allegation that the Magistrate Judge “ridiculed” Plaintiff’s case with her remarks
cannot support a motion to recuse, because judicial remarks that are critical of a party or case
ordinarily do not support a bias or partiality challenge.
Plaintiff’s allegation that there is an appearance of impropriety because Magistrate Judge
Hendricks serves on an educational board is insufficient, because Plaintiff has not specified what
educational board Judge Hendricks serves on or what that board’s relationship is to SCDE, a
party in this case.

Lastly, Plaintiff’s allegation that Magistrate Judge Hendricks is biased

because she allegedly made a donation to the College of Charleston, an institution that is
allegedly related to SCDE, is without merit. Plaintiff presents no evidence regarding the precise
connection between SCDE and the College of Charleston or why the donation constitutes
evidence of bias in this particular case. Plaintiff also fails to present any evidence demonstrating
that Magistrate Judge Hendricks has a financial interest in the subject matter in controversy that
could be substantially affected by the outcome of the proceedings against Defendant SCDE.
Accordingly, Plaintiff’s motion to recuse Magistrate Judge Hendricks (ECF No. 71) is denied.
Plaintiff’s objections also contain a motion to stay the action until the court, the Fourth Circuit,
or the Judicial Conference Committee on Codes of Judicial Conduct decides a further course of

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action. Since the court has made a ruling as to Plaintiff’s motion to recuse, Plaintiff’s motion to
stay (ECF No. 71) is also denied.
Title VII and § 1983 Claims against SCDE
The Magistrate Judge recommended that Plaintiff’s Title VII claims against Defendant
SCDE be dismissed as a matter of law, because Plaintiff is not in an employment relationship
with Defendant SCDE. Plaintiff made no specific objections to this finding; therefore, the court
need not conduct a de novo review of this issue. The court agrees with the Magistrate Judge’s
recommendation and hereby dismisses Plaintiff’s Title VII claim against SCDE with prejudice.
See 28 U.S.C. § 636(b)(1); Orpiano, 687 F.2d at 47-48.
The Magistrate Judge also recommended that Plaintiff’s 28 U.S.C. § 1983 claim against
SCDE fails, because SCDE, as a state agency is not a person under § 1983 and therefore, is not a
proper party. Plaintiff made no specific objections to this finding; therefore, the court need not
conduct a de novo review of this issue. The court agrees with the Magistrate Judge’s finding and
hereby dismisses Plaintiff’s § 1983 claims against SCDE with prejudice. See 28 U.S.C. §
636(b)(1); Orpiano, 687 F.2d at 47-48.
Title VII and § 1983 Claims against Defendant Covey
The Magistrate Judge recommended that Plaintiff’s Title VII claims against Defendant
Covey be dismissed as a matter of law, because Plaintiff is not in an employment relationship
with Defendant Covey. Plaintiff made no specific objections to this finding; therefore, the court
need not conduct a de novo review of this issue. The court agrees with the Magistrate Judge’s
finding and hereby dismisses Plaintiff’s Title VII claim against Defendant Covey with prejudice.
See 28 U.S.C. § 636(b)(1); Orpiano, 687 F.2d at 47-48.

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The Magistrate Judge also recommended that Defendant Covey is entitled to Eleventh
Amendment immunity because he is being sued in his official capacity as an agent of the state.
The Magistrate Judge contends that even if Defendant Covey was sued in his individual capacity,
Plaintiff’s claims against him should be dismissed because Defendant Covey is entitled to
qualified immunity.

The Magistrate Judge determined that Plaintiff has not alleged any

cognizable constitutional claim against Defendant Covey and that Plaintiff’s allegations of
Defendant Covey’s failure to return Plaintiff’s phone calls or otherwise communicate with him
regarding his bid protest is not constitutionally cognizable. Plaintiff made no specific objections
to this finding. Nonetheless, the court has reviewed the Report and Recommendation and
declines to adopt the Magistrate’s recommendation on this specific point.
To the extent that Plaintiff’s § 1983 claim is brought against Defendant Covey in his
official capacity, the court agrees with the Magistrate Judge’s finding that Plaintiff’s claim
should be dismissed with prejudice. However, the Magistrate Judge also considered Plaintiff’s
claim against Defendant Covey in his individual capacity, finding that qualified immunity barred
the claim. This court will also consider Plaintiff’s § 1983 claims against Defendant Covey in his
individual capacity, noting that the header of Plaintiff’s amended complaint lists all named
Defendants followed by the phrase “all collectively and individually.”
The doctrine of qualified immunity protects government officials performing
discretionary functions from liability for civil damages where “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a government official properly
asserts the defense of qualified immunity, he is entitled to dismissal if either: 1) the facts, taken
in the light most favorable to the plaintiff do not present the elements necessary to state a

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violation of a constitutional or federal statutory right, or 2) the right was not clearly established
such that it would have been clear to a reasonable officer that his conduct was unlawful in the
situation he confronted. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009).
Defendant Covey stated that Plaintiff did not allege how Defendant Covey participated in
the bid process violations. As such, Defendant Covey did not identify or mention Plaintiff’s
equal protection claim, nor did he address the specific prongs of qualified immunity as to the
equal protection claim. However, Plaintiff has alleged in his amended complaint that Defendant
Covey unlawfully tampered with documents relating to the procurement process and unlawfully
made changes to the intent to award document to prevent Plaintiff from acquiring the contract.
This fact, taken in the light most favorable to the Plaintiff, is sufficient to allege a violation of the
equal protection clause of the Fourteenth Amendment. Plaintiff is essentially alleging that
Defendant Covey discriminated against contract bidders such as himself by failing to apply the
state procurement guidelines equally to all bidders. At this stage, the court finds that Defendant
Covey has not fulfilled his burden of showing that he is entitled to qualified immunity. The
court however, notes that Defendant Covey is permitted to re-allege his affirmative defense of
qualified immunity in any subsequent dispositive motions.
Request to Amend Pleadings
Plaintiff’s objections to the Report and Recommendation also included a request to
amend his complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. Under Rule
15(a), leave to amend a pleading “shall be freely given when justice so requires.” In Foman v.
Davis, 371 U.S. 178 (1962), the Supreme Court indicated that a motion to amend a pleading
should be denied only when the amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment would be futile.

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The Magistrate Judge recommended that leave to amend not be granted at least with
regard to claims against Defendant CB&H & Defendant Elliott Davis. The Magistrate Judge
contends that Plaintiff has already amended the complaint once and the allegations in the
amended complaint as to these Defendants as well as Plaintiff’s responses to their respective
motions to dismiss are not any more developed as to facts than the original complaint.
Accordingly, the Magistrate Judge finds that Plaintiff’s filings do not suggest that he can allege
more facts as to these Defendants’ involvement in the alleged “bid rigging” conspiracy if given
the opportunity.
Plaintiff’s § 1983 claim against Defendant SCDE and his Title VII against Defendants
SCDE and Covey claims were herein dismissed with prejudice, because they fail as a matter of
law as was discussed earlier.

Accordingly, leave to amend those claims would be futile.

However, the court cannot say that an amended complaint as to Plaintiff’s remaining federal and
state claims against Defendants SCDE would be futile, since the basis for dismissal of those
remaining claims is essentially insufficient pleading and lack of sufficient facts to render the
claims plausible.

It is possible that Plaintiff could allege additional facts in an amended

complaint to make his remaining claims plausible; therefore, the court cannot say that leave to
amend would be futile.
The court declines to adopt the recommendation of the Magistrate Judge that leave to
amend should not be granted as to the claims against Defendants CB&H and Elliott Davis.
Plaintiff’s amended complaint was filed shortly after his original complaint and before
Defendants’ various motions to dismiss were filed; therefore, the amended complaint did not
purport to address pleading insufficiencies identified by Defendants in their respective motions
to dismiss. Plaintiff has not yet been given the opportunity to amend his complaint specifically

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to cure pleading insufficiencies; therefore, the court cannot say that leave to amend would be
futile at this junction.
After a thorough review of the Report and Recommendation, the Plaintiff’s objections,
the record in its entirety, and the applicable law, the court adopts the Magistrate Judge’s findings
in part and declines to adopt the findings in part. Defendant SCDE’s motion to dismiss (ECF
No. 20) is GRANTED in part as to the Title VII and § 1983 claims and DENIED as MOOT as to
the remaining claims. Plaintiff’s Title VII and § 1983 claim against Defendant SCDE are hereby
dismissed with prejudice. Defendant Covey’s motion to dismiss (ECF No. 40) is GRANTED in
part as to the Title VII claim and DENIED as moot as to the remaining claims. Plaintiff’s Title
VII claim against Defendant Covey is hereby dismissed with prejudice. Defendant CB&H and
Defendant Elliot Davis’ respective motions to dismiss (ECF Nos. 27, 34) are DENIED as
MOOT. Plaintiff’s motion for recusal and stay of proceedings is DENIED (ECF No. 71). The
court grants Plaintiff’s request to amend his complaint as to the remaining claims. Any amended
complaint must be filed within twenty-one days of the filing of this order. Since Plaintiff has
been given the opportunity to file an amended complaint, Plaintiff’s earlier motion to stay is
DENIED as MOOT (ECF No. 60).

The matter is recommitted to the Magistrate Judge for

additional review and a Report and Recommendation.

IT IS SO ORDERED.
s/ Margaret B. Seymour
Margaret B. Seymour
Chief United States District Judge
February 29, 2012
Columbia, South Carolina

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