                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-2117


TIGRESS SYDNEY ACUTE MCDANIEL,

                    Plaintiff - Appellant,

             v.

MICHELLE FEIMSTER BAILEY; INFINITY BAIL BONDS, LLC; RICHARD
HUFFMAN, a/k/a Dick Huffman; ANNA MILLS WAGONER; JULIA T. TITUS
EMERSON; AMERICAN RELIABLE INSURANCE COMPANY; ASSURANT
SPECIALTY PROPERTY; W. ERWIN SPAINHOUR; WELLS FARGO &
COMPANY, a/k/a Wells Fargo Bank, a/k/a Wachovia Bank; DOES, 1-30,

                    Defendants - Appellees.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cv-00448-RJC)


Submitted: January 30, 2018                                  Decided: February 8, 2018


Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed as modified by unpublished per curiam opinion.


Tigress Sydney McDaniel, Appellant Pro Se. Jeffrey Brandt Kuykendal, MCANGUS,
GOUDELOCK & COURIE, LLC, Charlotte, North Carolina; Benjamin David Schwartz,
SCHWARTZ & STAFFORD, PC, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Tigress Sydney Acute McDaniel filed in district court an action under 42 U.S.C.

§ 1983 (2012) and 42 U.S.C. § 1985 (2012). The district court sua sponte dismissed

McDaniel’s complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)

(2012). We affirm the district court’s judgment as modified to reflect that the dismissal

be without prejudice.

       “The standards for reviewing a dismissal under § 1915(e)(2)(B)(ii) are the same as

those for reviewing a dismissal under [Fed. R. Civ. P.] 12(b)(6).” Thomas v. Salvation

Army S. Terr., 841 F.3d 632, 637 (4th Cir. 2016) (internal quotation marks omitted).

“Thus, we review this dismissal de novo and accept pleaded facts as true.” Id. We

liberally construe the allegations in a pro se complaint, although the “complaint still must

contain enough facts to state a claim for relief that is plausible on its face.” Id. (internal

quotation marks omitted).

       On appeal, McDaniel first argues that the district judge should have recused

himself from the proceedings because McDaniel had recently appealed one of his orders

in another case. McDaniel contends that the district judge would not have dismissed this

case but for her exposure of his “substantially gross legal errors” in the other case. Any

federal judge “shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.” 28 U.S.C. § 455(a) (2012). To warrant recusal, “[t]he nature

of the judge’s bias must be personal and not judicial.” In re Beard, 811 F.2d 818, 827

(4th Cir. 1987). McDaniel asks this court to assume that the district judge would not

have dismissed this case unless he were offended by McDaniel’s appeal in the other case,

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but she offers no facts to support this conclusion. We perceive no error in the district

judge’s failure to recuse himself from this matter.

       McDaniel next challenges the district court’s ruling that she failed to state an

actionable § 1983 claim and that none of the Defendants were subject to liability under

§ 1983. “To state a claim under § 1983, a plaintiff must allege that he was deprived of a

right secured by the Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.” Thomas, 841 F.3d at 637 (internal

quotation marks omitted). “The statutory color-of-law prerequisite is synonymous with

the more familiar state-action requirement—and the analysis for each is identical.”

Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Applying these

principles to the record before us, we discern no reversible error.

       McDaniel correctly asserts that, in its dismissal order, the district court did not

directly address her § 1985 claim. To bring a claim under § 1985, a plaintiff must show:

       (1) a conspiracy of two or more persons, (2) who are motivated by a
       specific class-based, invidiously discriminatory animus to (3) deprive the
       plaintiff of the equal enjoyment of rights secured by the law to all, (4) and
       which results in injury to the plaintiff as (5) a consequence of an overt act
       committed by the defendants in connection with the conspiracy.

Thomas, 841 F.3d at 637 (internal quotation marks omitted). “Allegations of parallel

conduct and a bare assertion of a conspiracy are not enough for a claim to proceed.” Id.

(internal quotation marks omitted). While McDaniel uses the words “conspiring” and

“conspiracy” throughout her complaint, she “fails to allege with any specificity the

persons who agreed to the alleged conspiracy, the specific communications amongst the

conspirators, or the manner in which any such communications were made.” See A Soc’y

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Without a Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011). Moreover, McDaniel

does not allege that the Defendants were motivated by class-based animus. Accordingly,

although the district court failed to directly address this claim in its order, the dismissal

was not in error.

       Thus, we conclude that the district court was right to dismiss the complaint. ∗

However, because McDaniel was not given an opportunity to respond or amend her

complaint before the court’s sua sponte dismissal, we affirm the judgment as modified to

reflect a dismissal without prejudice. See Thomas, 841 F.3d at 642. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                               AFFIRMED AS MODIFIED




       ∗
          Because the district court did not err in dismissing McDaniel’s complaint for
failure to state a claim under § 1983 and § 1985, we need not address the court’s alternate
theory that dismissal was appropriate under the Younger v. Harris, 401 U.S. 37 (1971),
abstention doctrine.


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