Opinion
C/A No. 4:19-2774-RMG-TER
02-12-2020
Supreme Raheem Ackbar, #182864, a/k/a Ronald Gary, #275886, Plaintiff, v. Christopher Monaco, Agent Martin, Officer Boccabello, Rivera Lopez, Defendants.
Report and Recommendation
This is a civil action filed by a state prisoner proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted," "is frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges his equal protection and due process rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments have been violated. (ECF No. 1 at 13). Plaintiff alleges on July 30, 2019, Ackbar was walking up the steps and heading to his assigned cell when Defendants entered the unit and "illegally seized me" in front of the upstairs showers and instructed me to head back because Ackbar had been witnessed coming out of cell 217. Plaintiff stated he had not come out of the cell but had come from the stairs. Monaco stated "You can get stripped search right here." (ECF No. 1 at 14). Plaintiff alleges hostility was displayed towards him. There was nothing resulting from this discussion, no disciplinary charge, no strip search, etc.,; Plaintiff's grievance makes clear it was only words. A phone charger was found dealing completely with other inmates; Plaintiff cannot pursue other inmates' claims. Plaintiff states he filed a grievance about the threat of strip search. Plaintiff requests monetary damages, release, and injunctive relief. There are several allegations in the Complaint that are entirely unrelated to Ackbar.
Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and gave Plaintiff an opportunity to file an Amended Complaint. (ECF No. 7). Plaintiff filed objections to the court's order, arguing the Magistrate Judge's order introduced "scandalous matter" and was "submerged" with "malice, sadism, deliberate indifference and corruption," rather than file an Amended Complaint. (ECF No. 10). Plaintiff filed a Motion for Judgment on the Pleadings and a Motion to Strike the court's order. (ECF No. 11). The district judge overruled Plaintiff's objections to the undersigned's order and ordered Plaintiff to cure the deficiencies detailed by the undersigned by filing an amended complaint within twenty-one days of that order. (ECF No. 14). Plaintiff filed objections to the district judge's order, arguing the order was "submerged with malice, sadism, deliberate indifference, and scandalous matter, and did not file an Amended Complaint within the time ordered. (ECF No. 18).
Plaintiff was twice informed regarding deficiencies and given notice and opportunity to amend his complaint. He failed to avail himself of such opportunity and did not file an Amended Complaint; the deficiencies persist and this action is subject to summary dismissal.
To the extent Plaintiff attempts to allege an Eighth Amendment claim by allegations regarding only threats of a strip search made to him. As plead, such facts do not rise to a claim of constitutional magnitude. Sloan v. Lee, No. 13-3843, 2015 WL 273219, at *18 (D. Md. Jan. 20, 2015)(citing Pink v. Lester, 52 F.3d 73, 75 (4th Cir.1995), McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir.2001), Henslee v. Lewis, 153 Fed. Appx. 178, 180 (4th Cir. 2005)).
Plaintiff alleges generally his due process and equal protection rights were violated. Plaintiff has not alleged the taking of a protected liberty interest. Constitutional due process rights are only at issue when the prisoner is deprived a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To show that his equal protection right was violated, Plaintiff must demonstrate that he was treated differently from similarly situated inmates and the discrimination was intentional or purposeful. Williams v. Hansen, 326 F.3d 569 (4th Cir.2003). Plaintiff's allegations do not give rise to a claim of constitutional magnitude.
Moreover, Plaintiff's complaint is subject to summary dismissal because it lacks facts supporting a § 1983 action. In order to assert a plausible § 1983 claim against any particular state actor, a "causal connection" must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id. Defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved." Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id. Plaintiff failed to allege facts to state an actionable claim and was given two opportunities to do so.
Plaintiff's request for relief also states "release from false imprisonment." Section 1983 is not the proper vehicle for requesting release from prison; Plaintiff may file a habeas action.
To the extent Plaintiff is suing in regard to the SCDC grievance process, there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
Plaintiff has failed to state a claim upon which relief could be granted.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend twice and has failed to cure deficiencies by filing an amended complaint.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 12, 2020
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).