Ferguson v. County of Greenville South Carolina et al

Filing 44

ORDER RULING ON REPORT AND RECOMMENDATION adopted in part 35 Report and Recommendation, granting 13 Motion to Dismiss, filed by A J Hamam, Robert Hanley, Greenville County Soil and Water Conservation District, Greenville South Carolina, County of, Kirsten Robertson, Harold Moon, denying as moot 39 Motion for Joinder filed by Ronald J Ferguson. Signed by Honorable G Ross Anderson, Jr on 3/19/15. (alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Ronald J. Ferguson,

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Plaintiff,
v.
County of Greenville, South Carolina;
Greenville County Soil and Water
Conservation District; Harold Moon;
A.J. Hamam; Kirsten Robertson; and
Doctor Robert Hanley,
Defendants.

No. 6:14-CV-01213-GRA

ORDER
(Written Opinion)

This matter comes before this Court for review of Defendant’s Motion to Dismiss,
the United States Magistrate Judge’s Report and Recommendation made in accordance
with 28 U.S.C. § 636(b)(1)(B), and Plaintiff’s Motion for Joinder. ECF Nos. 13, 35, 39.
After a de novo review and for the reasons set forth below, the Report and
Recommendation is ADOPTED IN PART, the Motion to Dismiss is GRANTED, and the
Motion for Joinder is DENIED as moot.

BACKGROUND
Plaintiff is the owner of a residential lot in Greenville County, South Carolina.
ECF No. 18 ¶ 10. In December 2012, his licensed builder began excavating the site for
a dwelling. Id. ¶ 16. Shortly thereafter, a neighboring landowner, Michael C. Stehney,
Jr., complained to Greenville County officials that run-off from the construction site was
polluting his pond. Id. ¶¶ 17, 21.

Greenville County issued a stop-work order and

required Plaintiff to obtain a permit and make certain corrections before work could
resume. Id. ¶¶ 18, 25, 27. While attempting to resolve these issues, Plaintiff learned
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that Stehney’s pond was created using berms and filled via an underground pipe
attached to storm water collection basins. Id. ¶¶ 41, 46-51. Plaintiff claims the pond
was wrongfully constructed on a federally protected watershed, causes erosion, and
discharges into Ray Branch, a navigable water subject to the Clean Water Act. Id. ¶¶
45, 52-53. Although Plaintiff contacted Defendants about the pond, they refused to take
action. Id. ¶¶ 34, 67-69.
In essence, Plaintiff claims that Defendant’s “tacit approval” and failure to take
action against Stehney for constructing the pond and discharging into a navigable water
“violate[s] laws of the State of South Carolina, as well as federal law.” Id.

¶¶ 85.

According to Plaintiff, Defendants knew or should have known that Stehney required a
permit to discharge his pond into Ray Branch. Id. ¶ 86. Further, Defendants “knew or
reasonably should have known that their actions and practices towards Plaintiff violate
the 4th, 5th, and 14th Amendments of the U.S. Constitution,” and “knew or reasonably
should have known that berms were erected within the watershed and cause flooding of
neighboring properties in contravention of [S.C. Code §] 49-11-10.” Id.

¶¶ 88, 90.

Plaintiff seeks damages, a declaratory judgment, and injunctive relief. Id. at 10-11.
On April 1, 2014, Plaintiff filed suit in this Court. ECF No. 1. On April 24, 2014,
Defendants filed the pending Motion to Dismiss. ECF No. 13. Thereafter, Plaintiff filed
an Amended Complaint, and Defendants filed a memorandum renewing their
arguments that the case should be dismissed. ECF Nos. 18, 25. Plaintiff then filed a
response in opposition of dismissal, and Defendants replied. ECF Nos. 27, 34. The
Magistrate Judge issued a Report and Recommendation, concluding that this case
should be dismissed. ECF No. 35. Plaintiff filled Objections, as well as a Motion for

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Joinder, ECF Nos. 39, 41, to which Defendants responded, ECF Nos. 40, 43. These
matters are now ready for ruling.

STANDARD OF REVIEW
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 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 order for objections to be considered by a United States District Judge, the
objections must be timely filed and must specifically identify the portions of the Report
and Recommendation to which the party objects and the basis for the objections. Fed.
R. Civ. P. 72(b); see Wright v. Collins, 766 F.2d 841, 845–47 & nn.1–3 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984). “Courts have . . . held
de novo review to be unnecessary in . . . situations when a party makes general and
conclusory objections that do not direct the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982). 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).

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In addition, Plaintiff is proceeding pro se. A pleading filed pro se is “to be liberally
construed,” and “held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). However, a
district court may not construct the plaintiff's legal arguments for him and is not required
to recognize “obscure or extravagant claims defying the most concerted efforts to
unravel them.” Weller v. Dep't of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391
(4th Cir. 1990) (citation omitted). “Only those questions which are squarely presented
to a court may properly be addressed.” Id.

DISCUSSION
I. Clean Water Act Claims
The Court adopts the Report and Recommendation with respect to dismissal of
Plaintiff’s claims under the Clean Water Act for failure to provide the pre-suit notice
required by 33 U.S.C. § 1365(b). See ECF No. 35 at 3-5. As that notice is a mandatory
condition precedent, Plaintiff’s failure to allege or otherwise show that the notice was
provided requires dismissal of the Clean Water Act claims. See Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 399 (4th Cir. 2011)
(“[C]ompliance with the notice and delay provisions of § 1365(b)(1)(A) of the Clean
Water Act is a mandatory condition precedent to the commencement of a suit under this
Act.”); Nat'l Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096, 1096 (11th Cir. 1991)
(affirming dismissal of Clean Water Act claims for failure to comply with the notice
requirement).
In Plaintiff’s Objections, he informs the Court that he “has prepared” a Second
Amended Complaint in which he alleges that notice was provided to the Environmental
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Protection Agency in May 2014.1 ECF No. 41 at 2. However, Plaintiff never formally
filed a Second Amended Complaint, and that proposed document is not part of the
record. Moreover, “the plain language of the Clean Water Act” indicates “that a citizen
suit may not ‘be commenced’ before 60 days after the plaintiff has given notice of the
alleged violation to the EPA, to the state in which the violation occurred, and to the
alleged violator.”

Gaston Copper Recycling Corp., 629 F.3d at 398 (citing §

1365(b)(1)(A)). Even if Plaintiff provided proper notice in May 2014, he was required to
wait sixty days prior to commencing this suit. Plaintiff filed this suit in April 2014, prior to
the notification and expiration of the sixty day waiting period. Accordingly, the Clean
Water Act claims will be dismissed.
II. Section 1983 Claims
Defendants contend that Plaintiff’s Section 1983 claims should be dismissed
pursuant to Federal Rule of Procedure 12(b)(6).2 ECF No. 25 at 17-19. A motion to
dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Randall v. United
States, 30 F.3d 518, 522 (4th Cir. 1994). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at

1

Plaintiff does not indicate whether he provided notice to the State of South Carolina and the alleged
violator as required by § 1365(b)(1)(A)(ii)-(iii).
2

Although the Magistrate Judge recommended that the Section 1983 claims be dismissed on abstention
grounds, the Court declines to adopt this portion of the Report and Recommendation. The abstention
doctrines referenced are particularly nuanced and were never briefed by the parties.

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556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id.
In making this determination, the district court must assume that all well-pled
facts are true and draw all reasonable inferences in favor of the plaintiff.

Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).
However, the court is not required to accept “allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.” Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002) (citation omitted). A complaint need not assert “detailed
factual allegations;” however, it must contain “more than labels and conclusions,” and “a
formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550
U.S. at 555.
In reviewing a Rule 12(b)(6) motion, the court may consider the complaint and
documents attached to the complaint. Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009) (citing Fed. R. Civ. P. 10(c)).

Further, the court may consider

material outside the complaint if such material is “integral to and explicitly relied on in
the complaint and if the plaintiffs do not challenge its authenticity.” Am. Chiropractic
Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (citation omitted).
Further, the court may consider facts properly subject to judicial notice. U.S. ex rel.
Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014).
“Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a
cause of action: (1) the deprivation of a right secured by the Constitution or a federal
statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119
F.3d 1156, 1159-60 (4th Cir. 1997).

Plaintiff’s Complaint merely alleges that

Defendants “knew or reasonably should have known that their actions and practices
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towards Plaintiff violate the 4th, 5th, and 14th Amendments of the U.S. Constitution.” Id.
¶ 88. Although the Amended Complaint contains a long (and rambling) recitation of
facts, it fails to identify the specific “actions and practices” of Defendants that form the
factual basis of the constitutional violations. Further, Plaintiff fails to even identify the
specific rights covered by the three Amendments that were allegedly violated.

To

survive a motion to dismiss, the Complaint must “give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation
omitted).

Here, Plaintiff has failed to do so and the Section 1983 claims will be

dismissed for failure to state a claim.3
III. Section 1985 Claims
42 U.S.C. § 1985 is mentioned only in passing within the jurisdiction and venue
portion of the Amended Complaint. ECF No. 18 ¶¶ 8-9. To the extent that Plaintiff
intended to raise a Section 1985 claim, he failed to identify the specific provision of
Section 1985 implicated, as well as the factual basis. As with the Section 1983 claims,
any Section 1985 claims must be dismissed pursuant to Rule 12(b)(6).
IV. State Law Claims
The Amended Complaint makes a few vague references to violations of South
Carolina law. See ECF No. 18 ¶¶ 8, 28, 85. More specifically, Plaintiff alleges that “[a]s
a result of Stehney’s actions in collecting public surface water through stormwater
basins and building berms to impound such water for his personal use . . . the property
at PIN / Tax Map # 0594030103100 is perpetually flooded and incapable of draining in
3

This case illustrates “the difficult problems raised when pro se litigants only vaguely identify
potential legal issues in the controversy at hand.” Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th
Cir. 1985). The Court recognizes that “these litigants cannot, of course, be expected to frame legal
issues with the clarity and precision ideally evident in the work of those trained in law,” but a district court
cannot be “required to conjure up and decide issues never fairly presented,” or take on “the improper role
of an advocate seeking out the strongest arguments and most successful strategies for a party.” Id. at
1276, 1278.

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contravention of South Carolina statute 49-11-10.” Id. ¶ 56. Plaintiff alleges that Mark
Schafer is the owner of the neighboring property flooded by Stehney’s berms. Id. ¶ 70.
S.C. Code Ann. § 49-11-10 states: “No person shall be permitted or allowed to
make or keep up any dam or bank to stop the course of any waters so as to overflow
the lands of another person without the consent of such person first had and obtained
nor shall any person be permitted or allowed to let off any reserved water to injure the
crops upon the grounds of other persons.” Here, Plaintiff alleges that Stehney flooded
Mark Schafer’s property.
flooded by Stehney.

There is no allegation that Plaintiff’s property has been

Thus, Plaintiff has failed to allege any actionable injury.

In

addition, Stehney is not a party to this suit and Plaintiff has not alleged that Stehney
was acting on behalf of any Defendant in constructing the berms.4
Similarly, Plaintiff alleges that Stehney trespassed on Plaintiff’s property. ECF
No. 18 ¶ 39. However, there is no allegation that any Defendant trespassed or that
Stehney trespassed on behalf of any Defendant in this case. In summary, the Amended
Complaint fails to adequately set forth any claims under state law. Therefore, the state
law claims are subject to dismissal pursuant to Rule 12(b)(6).

CONCLUSION
For the reasons stated above, the Report and Recommendation is ADOPTED IN
PART, Defendant’s Motion to Dismiss is GRANTED, and Plaintiff’s Motion for Joinder is

4

Plaintiff merely alleges that Defendants “knew or reasonably should have known” that Stehney’s berms
were flooding neighboring properties and tacitly approved of Stehney’s actions. ECF No. 18 ¶¶ 85, 90.

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DENIED as moot. Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE5 and the
Clerk is directed to TERMINATE this case.
IT IS SO ORDERED.

________________________________
G. Ross Anderson, Jr.
Senior United States District Judge

March 19, 2015
Anderson, South Carolina

5

The Court recognizes that Defendants seek dismissal with prejudice. However, given that Plaintiff is
proceeding pro se and his Amended Complaint “represent[s] the work of an untutored hand,” dismissal
without prejudice is the more sensible course of action. See Beaudett, 775 F.2d at 1277.

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