Opinion
C/A No.: 1:20-2676-SAL-SVH
07-29-2020
Joshua Bower, #59788-056, Plaintiff, v. Foy D. Connell and McLeod Health Cheraw, Defendants.
REPORT AND RECOMMENDATION
Joshua Bower ("Plaintiff"), proceeding pro se and in forma pauperis, filed this complaint seeking compensatory damages. Plaintiff sues the above-listed defendants for alleged constitutional rights violations while he was incarcerated at the Federal Correctional Institution in Edgefield, South Carolina ("FCI-Edgefield"), a facility of the Bureau of Prisons ("BOP"). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the complaint with prejudice and without issuance and service of process. I. Factual and Procedural Background
Plaintiff filed a complaint on March 30, 2020 in civil action No. 1:20-1213-SAL-SVH ("Bower I") against the same defendants, as well as a doctor employed by the Bureau of Prisons. In both cases, Plaintiff alleges he was sent to McLeod Health in Cheraw, South Carolina, on July 22, 2018, as a result of his severe abdominal pain. [ECF No. 1 at 4]. Dr. Connell, a doctor at McLeod Health, examined him and found no overt bowel obstruction, but he noted fluid in Plaintiff's small intestine and abdomen. Id. at 4. Dr. Connell diagnosed him with a virus and discharged him. Id. at 5.
After suffering extreme pain since his discharge, Plaintiff was taken to the hospital again on August 9, 2020. Id. Plaintiff alleges the hospital medical staff gave him another x-ray, which revealed a small bowel obstruction. Id. at 6. Plaintiff remained in the hospital until his discharge on August 19, 2018, but Plaintiff alleges a necessary surgery was not performed. Id.
On October 9, 2018, Plaintiff again suffered from extreme abdomen pain. Id. at 7. He was eventually taken to the hospital where a surgery was performed. Id. Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.
In Bower I, the undersigned issued a Report and Recommendation on May 27, 2020, recommending that Connell and McLeod Health Cheraw be dismissed because they were not federal actors pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bower I at ECF No. 15. Additionally, the undersigned noted that to the extent Plaintiff was attempting to bring a claim for medical malpractice, he failed to comply with the requirements of S.C. Code Ann. § 15-36-100 and § 15-79-125, et seq., for filing medical malpractice actions. Id.
Bivens established that victims of a constitutional violation perpetuated by a federal actor may sue the offender for damages in federal court despite the absence of explicit statutory authorization for such suits.
The Report and Recommendation in Bower I is still pending.
Plaintiff filed the instant action on July 20, 2020, seeking relief for the same actions pursuant to 42 U.S.C. § 1983. [ECF No. 1]. II. Discussion
A. Standard of Review
Plaintiff filed his complaint 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 a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). 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). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
B. Analysis
1. Failure to State a § 1983 Claim
To the extent Plaintiff seeks to bring his claim pursuant to 42 U.S.C. § 1983, he has not shown defendants are state actors. To state a plausible claim for relief under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he was injured by "the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws" by a "person" acting "under color of state law." See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014).
For a party to be a state actor subject to suit under § 1983:
First, the deprivation 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 . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Here, Plaintiff has provided no allegations showing that a private doctor and private medical facility acted under the color of state law. Plaintiff was in federal custody and has provided no facts suggesting defendants acted under the color of state authority. III. Conclusion and Recommendation
In addition, Plaintiff has not shown that McLeod Health is a "person" pursuant to 42 U.S.C. § 1983.
To the extent Plaintiff is attempting to bring a claim pursuant to 42 U.S.C. §§ 1981 or 1985, Plaintiff has failed to allege the elements required for such causes of action. In addition, the Supreme Court has emphasized that under both statutes, a plaintiff must prove as an element of the causes of action 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993).
For the foregoing reasons, the undersigned recommends Plaintiff's complaint be dismissed. Because this is Plaintiff's second case alleging the same set of facts against defendants, the undersigned recommends the case be dismissed with prejudice. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
IT IS SO RECOMMENDED. July 29, 2020 Columbia,
South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).