Grant v. S.C. Dep't of Soc. Servs.

Tiana Elizabeth Grant; Raymond Michael Grant, III;both individually and on behalf of the interest of minor children involved, Plaintiffs, v. South Carolina Department of Social Services, CPS; Adrea Reynolds, DSS HSC I;Kamaria Delaney, DSS Caseworker, Daphne Curry McDaniel,DSS Supervisor; Sasserie Miles, Guardian Ad Litem, Defendants.

C/A: 2:18-1804-RMG-BM

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

February 14, 2019

REPORT AND RECOMMENDATION

Plaintiffs, Tiana Elizabeth Grant and Raymond Michael Grant, III, proceeding pro se and in forma pauperis, bring this action pursuant to 42 U.S.C. § 1983. Under established local procedure in this judicial district, a careful review has been made of the pro se Amended 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) [outlining pleading requirements under the Federal Rules of Civil Procedure].

Background

According to the allegations of the Complaint, Tiana Grant is the mother of three minor children, and Raymond Grant is her father. Tiana Grant asserts that she was asked to go to the South Carolina Department of Social Services, CPS (SCDSS) office to meet with Defendant Adrea Reynolds on March 30, 2016, at which time Reynolds allegedly demanded that Tiana Grant come up with an immediate plan to leave her parents' house along with her minor children or the children would be taken away from her. Complaint, ECF No. 1 at 11-12. Plaintiffs allege that on March 31, 2016, Tiana Grant's children were then taken into custody pursuant to an unfounded Order for Ex Parte custody, that the children were placed in temporary foster care, and that the children suffered mental health/emotional injuries. Id. at 3-4. Plaintiffs claim that the Ex Parte Order for Removal was obtained without probable cause because it was based on incorrect third party hearsay evidence concerning the conditions under which the children were kept (that there was no electricity in the home and the childrens' meals consisted of cereal) and because the Defendantsimproperly considered evidence of twenty-year old criminal proceedings against Raymond Grant that were expunged from his record. Id. at 5-6. At a hearing held June 8, 2016, a South Carolina family court judge found that SCDSS failed to prove by a preponderance of evidence that the minor children had been abused or neglected, and the children were returned to Tiana Grant's custody. Plaintiffs request compensatory and punitive damages as well as "an adequate letter of apology and admittance of wrongdoing." Id. at 4, 14.

Records from Georgetown County do not contain any reference to the expunged records discussed in the Complaint, but they do show that Raymond Grant was arrested in 2014 on a charge of criminal sexual conduct (CSC) with a minor under the age of 11 -first degree and a charge of CSC with a minor, 3rd degree - Commit/Attempt Lewd act (victim under 16 yrs & actor over 14 yrs), and that these charges were disposed of with the notation "Nolle Prosequi" on July 30, 2015. However, also on July 30, 2015, Raymond Grant pled guilty to the charge of assault and battery, second degree, and was sentenced to eleven months time served, but with an additional notation of no sex offender registry. See Georgetown County Public Index Fifteenth Judicial Circuit Index, https://publicindex.sccourts.org/Georgetown/PublicIndex/CaseDetails.aspx?County=22&CourtAgency=22001&Casenum=2014A2220200447&CaseType=C&HKey=102706678778990801168411810489697710412089105907057991207277656647114701099880987169841028911511448 [CSC with minor under age eleven]; https://publicindex.sccourts.org/Georgetown/PublicIndex/CaseDetails.aspx?County=22&CourtAgency=22001&Casenum=2014GS2200931&CaseType=C&HKey=1091098775799769821018652871208947559877104107899711781561011147354756680118495050102521018165103111 [CSC third degree]; https://publicindex.sccourts.org/Georgetown/PublicIndex/CaseDetails.aspx?County=22&CourtAgency=22001&Casenum=2015GS2200766&CaseType=C&HKey=1071086552103102112988686491008990105556590761034871715080106971095289776576891131098610486109847281 [assault and battery].¹

In 2017, Raymond Grant filed a complaint in the United States Court of Federal Claims in which he attempted to challenge his 2015 criminal conviction by the South Carolina Court of General Sessions. On April 4, 2018, the Honorable Lydia Kay Griggsby granted the United States' motion to dismiss for lack of subject matter jurisdiction. In her Order, Judge Griggsby noted that Raymond Grant pled nolo contendere to these charges and was sentenced to eleven months imprisonment. Grant v. United States, No. 17-1540C, 2018 WL 1615873 (Fed. Cl. April 4, 2018).

Discussion

Initially, it is noted that Plaintiffs' attempt to assert claims on behalf of Tiana Grant's children should be dismissed because the children are minors and Plaintiffs have failed to obtain counsel to represent the children. In general, non-attorney parents may not litigate the claims of their minor children in federal court. See Myers v. Loudoun Cnty. Public Schs., 418 F.3d 395, 401 (4th Cir. 2005) [holding that "non-attorney parents generally may not litigate the claims of their minor children in federal court"]; Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2nd Cir. 1990) [holding that "a non-attorney parent must be represented by counsel in bringing an actionon behalf of his or her child"]; Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) [holding that a father, acting pro se, could not represent his daughters]. While the court in Myers noted that parents might be permitted to litigate their children's claims in the context of a supplemental security income appeal because of the unique policy considerations involved in such cases, see Myers, 418 F.3d at 401, no such unique considerations are involved in this case. An individual's right to represent himself or herself pro se in federal court is protected by statute. See 28 U.S.C. § 1654. But the right to litigate one's claims without an attorney "does not create a coordinate right to litigate for others." Myers, 418 F.3d at 400.

In two separate orders (ECF Nos. 8 and 17), Plaintiffs were informed that they may not litigate the claims of minor children in federal court, were directed to apprise this Court within thirty days as to whether they were able to obtain counsel, and were further advised that a failure to do so might result in dismissal of claims asserted on behalf of the minor children. Despite being granted two extensions of time (see ECF Nos. 13 and 17), Plaintiffs have failed to obtain counsel for the minor children and, after the second proper form order, have failed to update the court any further as to any efforts to do so. As such, Plaintiffs have presented nothing to show that they are attorneys admitted to practice in this Court and they have failed to obtain counsel to represent the minor children. Therefore, it is recommended that any claims Plaintiffs are attempting to assert on behalf of the minor children be dismissed. See, e.g., Gallo v. United States, 331 F.Supp.2d 446, 447 (E.D.Va. 2004); Brown v. Ortho Diagnostic Systems, Inc., 868 F. Supp. 168, 170-71 (E.D. Va. 1994).

Secondly, the Complaint filed in this case is subject to summary dismissal without service of process because it fails to state a claim which this Court may consider under its federal question jurisdiction, see 28 U.S.C. § 1331, or its diversity jurisdiction, see 28 U.S.C. § 1332. Plaintiffs have filed this action asserting federal question jurisdiction pursuant to § 1983, which "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States," Rehberg v. Paulk, 566 U.S. 356, 361 (2012); and to state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). With their Complaint, Plaintiffs also filed a "Notice of Intent to File Federal Lawsuit" in which they state that they have filed this action under § 1983 (claiming violations of the Fourth and Fifth Amendments) and 18 U.S.C. § 242² for an unlawful violation of their constitutional and civil rights.

Plaintiffs also assert claims pursuant to § 15-78-50 of the South...