Jackson v. Richland County Penny Tax et al

Filing 12

ORDER AND OPINION adopting Report and Recommendations re 9 Report and Recommendation dismissing case without prejudice and without issuance and service of process. Signed by Honorable Margaret B Seymour on 2/23/2015.(mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Mamie Jackson,

)
)
Plaintiff,
)
)
v.
)
)
Richland County Penny Tax; South Carolina)
Department of Revenue; Richland County )
Treasurer; Richland County Council;
)
Columbia City Council; Central Midlands )
Regional Transit Authority; University of )
South Carolina; D. Huggins, University of )
South Carolina Vice President, individually )
and as a representative of the City of
)
Columbia to the CMRTA Board; Mr. Robert )
Schneider, Director of CMRTA, individually)
and in his official capacity; #63 Garnet bus )
shuttle; McNair Law Firm; Frannie Heizer, )
individually as an attorney at law and as a )
member of the Mcnair Law Firm,
)
)
Defendants.
)

Civil Action No. 3:14-4922-MBS

ORDER AND OPINION

Plaintiff Mamie Jackson (“Plaintiff”), proceeding pro se and in forma pauperis, brings this
action against Defendants pursuant to 42 U.S.C. § 1983 alleging that they conspired to use the
Richland County Penny Tax to fund a University of South Carolina shuttle driven by employees who
discriminate against her based on her race, age, and socioeconomic status. ECF No. 1. Plaintiff
concluded, with no factual support, that Defendants “met in secret . . . to use county funds . . . to
enhance USC transportation services,” which was a violation of her rights. ECF No. 1 at 3.
Specifically, Plaintiff asserted that the county funds unlawfully used by Defendant South Carolina
Department of Revenue for the benefit of Defendant University of South Carolina should be used

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to enhance services offered by Defendant Central Midlands Regional Transit Authority
(“CMRTA”). ECF No. 11at 4. Instead, according to Plaintiff, the CMRTA, which is primarily used
by Black, working class residents, offers a less-efficient system in comparison to the University of
South Carolina shuttle system primarily used by White students in violation of federal law. Id.
This matter is before the court pursuant to 28 U.S.C. § 1915(e)(2)(B) (2006), which requires
the court to dismiss civil actions filed in forma pauperis if they are frivolous or fail to state a claim
upon which relief can be granted. In accordance with 28 U.S.C. § 636(b) (2012) and Local Civil
Rule 73.02, D.S.C., the matter was referred to United States Magistrate Judge Paige J. Gossett for
a Report and Recommendation. The Magistrate Judge filed a Report and Recommendation on
January 30, 2015, recommending that the complaint be summarily dismissed without prejudice and
without issuance and service of process. ECF No. 9. Plaintiff filed objections to the Report and
Recommendation on February 17, 2015. ECF No. 11.
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 (1976). The court is charged with making a de novo
review of any portions of the Report and Recommendation to which a specific objection is made.
Id. 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 a specific error in the Magistrate Judge’s
proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
The court may accept, reject, or modify, in whole or in part, the recommendation made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
Plaintiff’s objections do not direct the court to a specific error in the Magistrate Judge’s

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Report and Recommendation. Orpiano, 687 F.2d at 47-48. Nevertheless, the court has conducted
a de novo review of the issues in this case and concludes that the Magistrate Judge has properly
applied the applicable law. The court specifically reviewed those conclusions of the Magistrate
Judge which were mentioned in Plaintiff’s objections. First, the Magistrate Judge properly analyzed
Plaintiff’s claims pursuant to 42 U.S.C. § 1983. Section 1983 is used to vindicate federal rights and
impose civil liability on those who act under the color of the law to deprive citizens of their rights.
See Baker v. McCollan, 443 U.S. 137, 140 (1979). In applying the section 1983 analysis, the
Magistrate Judge properly found that an action pursuant to the statute could not be maintained
against Defendants Richland County Penny Tax and #63 Garnet bus shuttle because neither entity
qualifies as a “person” under the statute. See 42 U.S.C. § 1983; Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690 n.55 (1978). The Magistrate Judge was also correct in determining that the action
could not be maintained against the private defendants–McNair Law Firm and attorney Frannie
Heizer–because purely private conduct is not actionable under section 1983, and Plaintiff provided
no factual allegations to demonstrate that their actions could be attributed to the state. Additionally,
the Magistrate Judge also properly determined that the municipal defendants–Richland County
Treasurer; Richland County Council; Columbia City Council; Central Midlands Regional Transit
Authority (“CMRTA”); Mr. Robert Schneider, Director of CMRTA; D. Huggins, Representative
of the City of Columbia to the CMRTA Board–could not be held liable under section 1983 because
Plaintiff’s complaint contains no factual allegations to show that the actions complained of were
conducted in furtherance of any policy, custom, or practice of the municipal defendants.
Additionally, to the extent that Plaintiff impliedly attributed the alleged wrongful actions of the
unidentified employees to the municipal defendants, the Magistrate Judge properly found that the

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municipal defendants could not be held liable under section 1983 simply by employing the alleged
tortfeasors. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).
Second, even assuming that Plaintiff’s allegations with regard to the use of funds are true,
see ECF No. 11 at 4, the Magistrate Judge concluded that the State defendants–South Carolina
Department of Revenue; University of South Carolina; D. Huggins, as Vice President of the
University–could not be sued in federal court because they have sovereign immunity pursuant to the
Eleventh Amendment. See Alden v. Maine, 527 U.S. 706, 712-13 (1999). Congress has not
specifically abrogated the states’ sovereign immunity through section 1983, see Quern v. Jordan,
440 U.S. 332, 343-45 (1979), and South Carolina has not consented to being sued in federal court,
S.C. Code Ann. § 15-78-20(e). As such, the Magistrate Judge properly determined that the
aforementioned state defendants could not be sued in federal court. Finally, in her objections,
Plaintiff contends that the #63 Garnet shuttle bus is a part of the CMRTA, which she asserts is a
corporation, and courts have determined that “corporations are persons under the campaign finance
act.” ECF No. 11 at 5. The Magistrate Judge properly determined that CMRTA was a municipal
entity, not a corporation, and that the scant allegations in the complaint failed to support a claim for
which relief could be granted.
Based upon the foregoing, the court adopts and incorporates herein by reference the Report
and Recommendation of the Magistrate Judge. The court further notes that Plaintiff’s complaint
alludes to a claim for relief pursuant to 42 U.S.C. § 1981, which does not require the defendants to
have taken action attributable to the state in order for the action to be maintained. Even assuming
that Plaintiff intended to bring a claim pursuant to section 1981 with respect to Defendants McNair
Law Firm and Frannie Heizer, Plaintiff failed to allege sufficient facts to show that those defendants

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intentionally discriminated against her on the basis of race concerning any of the activities
enumerated in the statute. See Whitner v. U.S., 487 F. App’x 801, 802 (4th Cir. 2012). As such,
Plaintiff failed to state a plausible claim for relief pursuant to section 1981.
Accordingly, because Plaintiff failed to state a claim upon which relief can be granted,
Plaintiff’s complaint is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Court Judge

February 23, 2015
Columbia, South Carolina

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