Toney v. Windham, et al

Filing 12

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 10 Report and Recommendation and summarily dismissing case without prejudice and without issuance and service of process. Signed by Honorable Margaret B Seymour on 2/8/2017. (mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Laura Ann Toney, as personal
representative of Maxie Lee Thomas,
Jr.,

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)
)
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Plaintiff,
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vs.
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Travis Windham, Sr.; Travis Windham
)
Jr.; and TLT Holdings, LLC,
)
)
Defendants.
)
____________________________________)

C/A No. 3:16-3993-MBS

ORDER AND OPINION

Plaintiff Laura Ann Toney, as personal representative of Decedent Maxie Lee Thomas, Jr.,
proceeding pro se and in forma pauperis, filed a complaint on December 27, 2016, alleging that
Defendants Travis Windham, Sr.; Travis Windham, Jr.; and TLT Holdings, LLC bought certain
property of Decedent at a foreclosure sale. Plaintiff contends that (1) she was deprived of property
without due process of law, in that she was prevented from entering the premises without a notice
to vacate and the opportunity to obtain the Decedent’s personal effects (First Cause of Action); that
Defendants entered the land in violation of S.C. Code Ann § 27-5-110 (Second Cause of Action);
(3) Defendants entered the land in violation of D.C Code § 22-3302 (Third Cause of Action); (4)
Defendants willfully violated the South Carolina law foreclosure (Fourth Cause of Action); (5) she
suffered intentional infliction of emotional distress (Fifth Cause of Action); and (6) Defendants
converted her property (Sixth Cause of Action). Plaintiff seeks injunctive relief; recovery of her
property; and actual, treble, and punitive damages.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred

to United States Magistrate Judge Shiva V. Hodges for pretrial handling. The Magistrate Judge
reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915 and applicable precedents. The
Magistrate Judge found that Plaintiff’s complaint failed to demonstrate complete diversity of
citizenship to satisfy diversity jurisdiction. The Magistrate Judge further determined that Plaintiff’s
claims do not assert a violation of federal statute, and that, to the extent Plaintiff seeks to bring
claims for violations of her civil rights under 42 U.S.C. § 1983, she failed to allege the conduct
outlined in her complaint was committed under the color of state law. Accordingly, on January 11,
2017, the Magistrate Judge issued a Report and Recommendation in which she recommended that
the complaint be summarily dismissed without prejudice and without issuance and service of
process. Plaintiff filed no objections to the Report and Recommendation.
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). This 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)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. In the absence of a timely filed objection, a district court need not conduct a 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 310,
315 (4th Cir. 2005).
The court has thoroughly reviewed the record. The court concurs in the Report and
Recommendation and incorporates it herein by reference. Plaintiff’s complaint is summarily

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dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
February 8, 2017

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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