Opinion
C. A. 3:21-420-CMC-PJG
04-12-2021
Freddie L. Curtis, Plaintiff, v. Dr. Ryan Ziteke; Dr. Danny Ford; Gilead Products, Defendants.
REPORT AND RECOMMENDATION
Paige J. Gossett UNITED STATES MAGISTRATE JUDGE
Plaintiff Freddie L. Curtis, a self-represented state pretrial detainee, brings this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for initial review pursuant to 28 U.S.C. § 1915 and § 1915A. By order dated March 9, 2021, the court provided Plaintiff the opportunity to file an amended complaint to correct deficiencies identified by the court that would warrant summary dismissal of the Complaint pursuant to § 1915 and § 1915A. (ECF No. 10.) Plaintiff filed an Amended Complaint and supplement. (ECF Nos. 13 & 17.) Having reviewed the Amended Complaint in accordance with applicable law, the court concludes the Amended Complaint still fails to state a viable claim and should be summarily dismissed without prejudice and issuance of service of process.
Plaintiff is an inmate in the Sumter-Lee Regional Detention Center. In the original Complaint, Plaintiff indicated that he has arthritis in his left and right hips that was caused by the drug Stribild. Plaintiff indicated Stribild is made by Defendant Gilead Products. Plaintiff indicated that Defendant Dr. Ryan Ziteke, who treated his arthritis, arranged for Plaintiff to have surgery to correct the arthritis. The surgery was performed by Defendant Dr. Danny Ford on December 19, 2017 at Prisma Hospital. Four days after the surgery, Plaintiff felt something pop in his right hip, and since then, the pain in his right hip is worse than before the surgery. Plaintiff claimed Dr. Ziteke now gives him steroid injections but that only makes things worse and he refuses to schedule corrective surgery. Plaintiff asserted claims for damages pursuant to 42 U.S.C. § 1983 against the defendants for violations of the Cruel and Unusual Punishment and Equal Protection Clauses. Plaintiff also asserted causes of action for conspiracy and neglect to prevent conspiracy pursuant to 42 U.S.C. § 1985 and § 1986.
The court issued an order identifying deficiencies in the Complaint that justify summary dismissal of Plaintiff's action. (ECF No. 10.) The court found that Plaintiff failed to allege any facts that would plausibly show that the defendants are state actors amenable to suit pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. See generally West v. Atkins, 487 U.S. 42, 49 (1988). Therefore, the court found that the Complaint was subject to summary dismissal for failure to state a claim upon which relief may be granted.
Following the court's order, Plaintiff filed a letter that was docketed as an Amended Complaint (ECF No. 13), and a supplement to the letter (ECF No. 17). In the Amended Complaint and supplement, Plaintiff provides more details about his treatments with Doctors Ziteke and Ford. However, Plaintiff does not make any allegations that would suggest that the defendants in this case are state actors amenable to suit under § 1983. While Plaintiff indicates he is currently detained at the Sumter-Lee Regional Detention Center, he makes no allegations that would connect his treatment by Doctors Ziteke and Ford to his detention. Consequently, despite having availed himself of the opportunity to cure the deficiencies previously identified by the court, this matter should nonetheless be summarily dismissed because Plaintiff's pleadings still fail to state a claim upon which relief may be granted pursuant to §§ 1983, 1985, and 1986.
Accordingly, the court recommends that this matter be summarily dismissed without prejudice and without issuance and service of process.
If this recommendation is adopted, this action will constitute a “strike” under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), based on Plaintiffs failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”); see also Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020) (three strikes rule applies to dismissals without prejudice).
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).