Mack v. Wells Fargo Fin. S.C., Inc.
| Decision Date | 30 March 2020 |
| Docket Number | C/A: 2:19-3335-SAL-BM |
| Parties | Vincent Demar Mack, Plaintiff, v. Wells Fargo Financial South Carolina, Inc.; U.S. Bank Trust, N.A. as Trustee; Mikell R. Scarborough; Bradford Meekin Stokes; Chad Wilson Burgess; Caroline Richardson Glenn; Gregory Thomas Whitley, Defendants |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
This is a civil action filed by the Plaintiff, Vincent Demar Mack, pro se. Plaintiff asserts claims regarding a state foreclosure action in Charleston County, South Carolina.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow for the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980).
However, even when considered pursuant to this liberal standard, for the reasons set forth hereinbelow this case is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [].
Plaintiff and Paula Vincent previously filed two actions concerning a state foreclosure action (2014-CP-1008624) against their Charleston County property. They first removed the state action in case number 2:18-1479-RMG-BM, which was remanded to state court. In their second action, case number 218-1489-RMG-BM, they attempted to assert constitutional claims as well as claims under the Truth in Lending Act and the Fair Debt Collection Practices Act, but failed to get their case into proper form such that the case was dismissed pursuant to Fed. R. Civ. P. 41(b).1 In the present case, Plaintiff2 asserts Fifth, Sixth, and Ninth Amendment claims pursuant to 42 U.S.C. § 1983 as well as claims under South Carolina law concerning incidents as to the same mortgage foreclosure action (2014-CP-1008624) in Charleston County. Complaint, ECF No. 1 at 4, Attachment to Complaint, ECF No. 1-1 at 1.
Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that the Defendants violated his constitutional rights by failing to answer his discovery demands in a state court case. He also claims that Defendant Mikell Scarborough, the Master In Equity for Charleston County, ordered the sale of his property without a proper investigation as to what entity owned both the note and mortgage. Additionally, Plaintiff alleges claims under South Carolina law including negligence, slander, breach of trust, unprofessional conduct, unfair practices, and violation of the South Carolina constitution. Plaintiff has also submitted a document, which he appears to have filed in the state action (2014-CP-1008624), titled "pendency as constructive notice SECTION 15-11-20", in which he identifies the property in question as 1604 Pineview Road in Charleston County. ECF No. 1-1 at 4. The relief requested by Plaintiff includes monetary damages, and that the state court "grant a new and impartial trial to void and vacate the court order(s) based on the established precedents of the stare decisis voiding the sale of my home......" ECF No. 1-1 at 3.
Review of the court records of Charleston County, South Carolina reveals that a Notice of Sale was signed by Judge Scarborough in January 2020. Thereafter, an Order for a Writ of Assistance was signed in February 2020. Plaintiff filed a Notice of Appeal in the state court action, which was denied. See Charleston County 9th Judicial Circuit Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10002&Casenum=2014CP1006824&CaseType=V&HKey=82119705379109114656754821161191075254801181227272879780431125711011952886810111072121119731081167311465.3
Plaintiff asserts that his Sixth Amendment rights have been violated because he was not allowed to face or confront witnesses or accusers in the state court action. ECF No. 1-1 at 1-2. However, the Sixth Amendment right to confrontation of witnesses generally does not apply in civil cases, including foreclosure cases. See U.S. Const. amend. VI, Austin v. United States, 509 U.S. 602, 608 (1993) [] (quotation omitted); Manta v. Mukasey, 263 F. App'x 626, 629 (9th Cir. Jan. 16, 2008)[Sixth Amendment right to confrontation of witnesses only applies in criminal cases]; but see Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016)[Sixth Amendment might apply in immigration removal hearings]. Thus, Plaintiff's Sixth Amendment claim should be dismissed.
Plaintiff also alleges that his Ninth Amendment rights have been violated. ECF No. 1-1 at 1. However, the Ninth Amendment "has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation." Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) [], cert. denied, 503 U.S. 951(1992); see also Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir. 1986)[rcjccting § 1983 claim based on the penumbra of the Ninth Amendment in the absence of some specific constitutional guarantee]. Thus, any claim under the Ninth Amendment should also be dismissed.
Plaintiff also alleges that his due process rights under the Fifth Amendment have been violated. ECF No. 1-1 at 1-2. However, any claims against Defendant Scarborough, the Master in Equity for Charleston County, are subject to summary dismissal as this Defendant is entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9, 12 (1991); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). This immunity extends to judges of courts of limited jurisdiction, such as municipal and magistrate court judges. Figueroa v. Blackburn, 208 F.3d 435, 441-43 (3d Cir. 2000) Further, "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority." Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). Judicial immunity is also not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967)[ that "immunity applies even when the judge is accused of acting maliciously and corruptly"]. Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11. Further, the doctrine of absolute judicial immunity also precludes the award of injunctive relief against Defendant Scarborough. See 42 U.S.C. § 1983 []. Therefore, Judge Scarborough is entitled to dismissal, as all of the actions complained of were taken in his judicial capacity.
To the extent that Plaintiff is attempting to bring a constitutional claim against Defendants Wells Fargo Financial South Carolina, Inc.; U.S. Bank Trust N.A. as Trustee (U.S. Bank); Bradford, Meekin Stokes; Chad Wilson Burgess; Carolina Richardson Glenn; and/or Gregory Thomas Whitley, Plaintiff has not alleged any facts to indicate that these private individuals and entities are state actors. Because the United States Constitution regulates only the government, notprivate parties, a litigant asserting a § 1983 claim that his constitutional rights have been violated must first establish that the challenged conduct constitutes "state action." See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). To qualify as state action, the conduct in question "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and "the party charged with the [conduct] must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); see U. S. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 941 F.2d 1292 (2d Cir.1991). Although a private individual or corporation can act under color of state law, his, her, or its actions must occur where the private individual or entity is "a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). There are no allegations here to suggest that the actions of Defendants Wells Fargo, U.S. Bank, Stokes, Burgess, Glenn, and/or Whitley were anything other than purely private conduct.4
Plaintiff also asserts that he is "a sundry and free Moor on the land of [his] ancestor...." ECF No. 1-1 at 1. However, to the extent that Plaintiff is attempting to claim that he is exempt from foreclosure laws because he is a Moor, it must be noted that the "Moorish Nation" is not a recognized sovereign state, and that persons claiming to be Moor or Moorish-American arenot immune from the laws and rules...
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