Major v. Greenville Housing Authority et al

Filing 180

ORDER RULING ON REPORT AND RECOMMENDATION granting 110 Motion for Summary Judgment,filed by Marian Todd, Housing Authority of the City of Greenville, Mike Raymond, adopting 151 Report and Recommendation. Accordingly, all other pending non-dispositive motions in this case are DISMISSED asMOOT. Signed by Honorable G Ross Anderson, Jr on 9/28/12. (alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Charles R. Major, Jr.,
aka Charles R. Major,

)
)
)
Plaintiff,
)
)
v.
)
)
)
Housing Authority of the City of
)
Greenville, Ms. Marian Todd, and
)
Mr. Mike Raymond,
)
)
)
Defendants.
________________________________ )

C/A No.: 6:12-cv-00183-GRA-KFM

ORDER
(Written Opinion)

This matter comes before the Court for review of United States Magistrate
Judge Kevin McDonald’s Report and Recommendation made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) of the District of South
Carolina, and filed on September 5, 2012. Plaintiff Charles R. Major, Jr., proceeding
pro se, filed this action on January 19, 2012, pursuant to 42 U.S.C. § 1983. ECF No.
1. Defendants moved for summary judgment on July 19, 2012. ECF No. 110. An
order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued by
the magistrate judge on July 19, 2012. ECF No. 111. Plaintiff filed a response to
Defendants’ Motion for Summary Judgment, and Defendants filed a reply to Plaintiff’s
response. See ECF Nos. 133 & 142.
Under established procedure in this judicial district, Magistrate Judge
McDonald made a careful review of the pro se complaint pursuant to the procedural
provisions of 28 U.S.C. § 1915, 28 U.S.C. § 1915A. Magistrate Judge McDonald

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recommends that this Court grant Defendants’ Motion for Summary Judgment.
Plaintiff timely filed two sets of objections to the Report and Recommendation on
September 21, 2012 and September 24, 2012, respectively. For the reasons
discussed herein, this Court adopts the magistrate judge’s recommendation in its
entirety and grants Defendants’ Motion for Summary Judgment.
Standard of Review
Plaintiff brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This
Court is charged with liberally construing a pleading filed by a pro se litigant to allow
for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S.
364, 365 (1982). A court may not construct the plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411 (7th Cir.1993), nor is a district court required to
recognize “obscure or extravagant claims defying the most concerted efforts to
unravel them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.1985), cert.
denied, 475 U.S. 1088 (1986).
Background
Plaintiff filed the instant pro se action, alleging violation of his constitutional
rights pursuant to 42 U.S.C. § 1983, on January 19, 2012. ECF No. 1. In the
Complaint, Plaintiff alleges a cause of action against the Housing Authority of the City
of Greenville “for terminating a HUD contract of housing assistance” and a cause of
action against two employees of the Housing Authority, Mike Raymond, Executive
Director, and Marian Todd, Property Manager, under 42 U.S.C. § 1983 for violation of

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his right to due process. Id. Specifically, Plaintiff claims that his due process rights
were violated because he was evicted from Scott’s Towers in January 2010 without
being given proper notice. See id.
Discussion
Magistrate Judge McDonald recommends granting Defendants’ Motion for
Summary Judgment. See Report and Recommendation, ECF No. 151.
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 this Court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this
Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may
also "receive further evidence or recommit the matter to the magistrate with
instructions." Id. Furthermore, in the absence of specific objections to the Report
and Recommendation, this Court is not required to give any explanation for adopting
the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
I.

Plaintiff’s Objections
A. Inadequate Notice
In both his complaint and objections to the Magistrate’s Report and

Recommendation, Plaintiff states that Defendants violated his rights under 42 U.S.C.
§ 1983 after he was evicted from Scott’s Towers and his Department of Housing and
Urban Development contract for housing assistance was terminated. Specifically,

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Plaintiff claims that he did not receive adequate notice of the eviction proceedings
because all notices came back to the Housing Authority as undeliverable. ECF No.
175. Moreover, he asserts that Ms. Marian Todd was untruthful in her affidavit when
she stated that the only address the Housing Authority had on file was his apartment
at Scott’s Towers. Id.
The Court finds that this objection is without merit. First of all, Plaintiff fails to
present any evidence that Ms. Todd was being untruthful in her affidavit. Second, as
found by the R & R, the notice given to Plaintiff complied with the procedures required
by both the federal regulations and state law.
The right of a public housing tenant to remain in his or her housing is “entitled
to due process protection.” Caulder v. Durham Hous. Auth., 433 F.2d 998, 1003 (4th
Cir. 1970) (citing Goldberg v. Kelly, 397 U.S. 254 (1970)). As part of this due process
requirement, the federal regulations provide that “an eviction action or a termination
of tenancy in State or local court” should provide as part of their procedural
safeguards “[a]dequate notice to the tenant of the grounds for terminating the tenancy
and for eviction.”

24 C.F.R. § 966.53(c).

Under the South Carolina Residential

Landlord and Tenant Act, a person may give adequate notice “by taking steps
reasonably calculated to inform the other in ordinary course whether or not the other
actually comes to know of it.” S.C. Code Ann. § 27-40-240 (1976); see Mullane v.
Cent. Bank & Trust Co., 339 U.S. 306, 314 (1950). Moreover, a tenant receives
adequate notice when “it is delivered in hand to the tenant or mailed by registered or
certified mail to the tenant at the place held out by him as the place for receipt of the

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communication, or in the absence of the designation, to the tenant’s last known place
of residence.” Id.
In this case, Defendants sent Plaintiff notices that complied with service of
process requirements in October, November, and December of 2009 and January
and February of 2010 to the only mailing address the Housing Authority had on file for
Plaintiff—his apartment at Scott’s Towers. See ECF No. 110. All of these notices
came back as undeliverable. Id. Yet, all that is required by South Carolina and
federal law is that the notice be “reasonably calculated to inform” the tenant of the
termination of the lease “whether or not the other actually comes to know of it.” See
S.C. Code Ann. § 27-40-240 (1976). The only address the Housing Authority had on
file and the only one that could have been found to send the Plaintiff notice was the
address at Scott’s Towers. The Notices of Termination were sent in a way that was
“reasonably calculated” to let Plaintiff know that his lease was being terminated for
failure to pay rent.
Furthermore, once it was determined that Plaintiff’s apartment appeared to be
abandoned, Ms. Todd as an agent of the Housing Authority filed an Application for
Ejectment with the South Carolina Magistrate’s Court. See ECF No. 110. The South
Carolina Magistrate Judge issued a Rule to Vacate or Show Cause on December 9,
2009. Id. However, the process server was unable on three separate occasions to
serve Plaintiff and executed an Affidavit of Nonservice on January 14, 2010. Id.
Again, Defendants attempted to serve Plaintiff in a way that was “reasonably
calculated” to apprise him of the Ejectment proceeding. In accordance with South
Carolina law, the Sheriff attached the Writ of Ejectment on the door to Plaintiff’s

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Apartment on February 18, 2010 after it was issued by the Magistrate and the
apartment had been determined to be abandoned. Id.
Finally, Plaintiff had adequate notice of the grounds for eviction in this case
from the very beginning of his lease agreement. The lease agreement clearly states,
“If Resident fails to make the Rent payment by the close of business on the fifth
working day of each month, a notice to terminate shall be issued by Landlord to
Resident.” Id. Under S.C. Code Ann. § 27-40-710, a landlord may terminate a rental
agreement for nonpayment of rent “provided the landlord has given the tenant written
notice of nonpayment and his intention to terminate the rental agreement if the rent is
not paid within that period.” Moreover, the “written notice” requirement of that section
is met if the agreement contains the following section or its substantial equivalent:
IF

YOU

DO

NOT

PAY

YOUR

RENT

ON

TIME

This is your notice. If you do not pay your rent within five days of the due
date, the landlord can start to have you evicted. You will get no other
notice as long as you live in this rental unit.
S.C. Code Ann. § 27-40-710 (1976). The provision in Plaintiff’s lease contains similar
language and conveyed to the Plaintiff that his lease could be terminated if he failed
to pay rent. Thus, it is substantially equivalent to the above section and meets the
“written notice” requirement under South Carolina law. At the very least, the section
in Plaintiff’s lease provided additional notice to him that eviction proceedings could
begin if he did not pay rent, late fees, and legal fees.
As such, Plaintiff was provided adequate service of process in this case on
several occasions. As stated in the R & R, each of the notices complied with the

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procedures required by the federal regulations. Therefore, Plaintiff was afforded due
process in his eviction proceedings, and his objection is without merit.
B. No Qualified Immunity
Plaintiff next objects to the grant of qualified immunity to Marian Todd and her
director Mike Raymond. The Court finds this objection to also be without merit.
Qualified immunity protects government officials performing discretionary functions
from civil damage suits as long as the conduct in questions does not “violate clearly
established rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In addressing qualified immunity, the United
States Supreme Court has formulated a two-prong test under which “a court must
first determine whether the plaintiff has alleged the deprivation of an actual
constitutional right at all and, if so, proceed to determine whether that right was
clearly established at the time of the alleged violation.” Wilson v. Layne, 526 U.S.
603, 609 (1999).
As outlined above, Ms. Marian Todd went through the appropriate legal
channels to evict Plaintiff and afforded him due process. The Court agrees with the
Magistrate Judge that qualified immunity for any due process right that Ms. Todd
allegedly violated should be granted. After following the law and having the South
Carolina Magistrate Court authorize the eviction, Ms. Todd was objectively
reasonable in relying on the court order and should not be subject to suit for taking
action in compliance with that order.
As to Mike Raymond, the director of the Housing Authority, qualified immunity
is appropriate. As Ms. Todd’s supervisor, it was objectively reasonable for him to

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believe that he was not violating any of Plaintiff’s rights when his property manager
was following the law and going through the appropriate legal channels to have him
evicted.
Therefore, Defendants Marian Todd and Mike Raymond are entitled to
qualified immunity from Plaintiff’s § 1983 suit, and Plaintiff’s objections to this grant of
qualified immunity are without merit.
C.

Other Objections

Finally, the Court finds that Plaintiff’s other objections are conclusory, nonspecific, or unrelated to the dispositive portions of the magistrate’s Report and
Recommendation.
Therefore, after a thorough review of the record, this Court finds that the
magistrate’s Report and Recommendation accurately summarizes this case and the
applicable law.

Accordingly, the Report and Recommendation is accepted and

adopted in its entirety.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED, and Plaintiff’s claims are DISMISSED with prejudice.
Accordingly, all other pending nondispositive motions in this case are DISMISSED as
MOOT.
IT IS SO ORDERED.

September 28, 2012 
Anderson, South Carolina  

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NOTICE OF RIGHT TO APPEAL
Plaintiff has the right to appeal this Order within thirty (30) days from the date of the
entry of this Order, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate
Procedure, will waive the right to appeal.

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