Opinion
C/A 8:21-cv-02964-TMC-JDA
09-24-2021
Ricardo Fishbourne, Plaintiff, v. Warden Williams, Warden Robinson, South Carolina Department of Corrections, DHO Williams, DHO Robinson, Kiesha Jones, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
Ricardo Fishbourne (“Plaintiff”), proceeding pro se and in forma pauperis, brought this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the Lieber Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the District Court. For the reasons below, the undersigned finds that this action is subject to summary dismissal.
Plaintiff is serving a 30-year sentence after being convicted by a jury in the Colleton County Court of General Sessions for the crimes of assault and battery with intent to kill and first degree burglary. See Fishbourne v. Colleton Cty. Solic. Off., No. 2:20-cv-00122-TMC, 2020 WL 1685349, at *1 (D.S.C. Apr. 7, 2020); see also SCDC Incarcerated Inmate Search, available at https://public.doc.state.sc.us/scdc-public/ (search by Plaintiff's SCDC ID number “00279661") (last visited Sept. 23, 2021). The Court takes judicial notice of Plaintiff's cases previously filed in this Court and in the state court as well as SCDC online records. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
BACKGROUND
Plaintiff commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983 on the standard court form. [Doc. 1.] Plaintiff appears to assert three claims in his Complaint: (1) a claim for due process violations arising from a prison disciplinary hearing, (2) a claim for denial of access to the courts arising from lost items of his legal mail, and (3) a claim for cruel and unusual punishment. [Id. at 4.] Plaintiff's claim for cruel and unusual punishment appears to be premised on Plaintiff's belief that various actors within and without SCDC are engaged in a conspiracy to wage a “campaign of harassment” against him. [Id. at 4, 6, 10-13.] Indeed, the majority of Plaintiff's allegations in the Complaint relate to his belief that he is being unfairly targeted by prison officials who have created a “snitch” network [id. at 8], resulting in various injuries to Plaintiff including the specific injuries complained of in his other two claims asserted in this action [id. at 17]. The undersigned provides only a brief summary of the allegations in the Complaint and organizes those allegations in light of the three separate claims noted above.
The undersigned assumes, without deciding, that the claims presented and the relief sought in this case are properly pursued in an action pursuant to 42 U.S.C. § 1983 rather than through an action seeking habeas corpus relief. See, e.g., Rhodes v. Sterling, 475 F.Supp.3d 470, 473-82 (D.S.C. 2020) (evaluating whether a plaintiff can pursue his claims and the relief available in a § 1983 action arising in a prison disciplinary context) (collecting cases). Although Plaintiff appears to challenge his disciplinary hearing conviction and seeks to have that conviction removed from his prison disciplinary record, the crux of this action appears to be a claim for damages related to the conditions of his confinement. While “[a]ppeals of disciplinary convictions filed by State prisoners are considered under [28 U.S.C.] § 2254,” Moultrie v. Reynolds, No. 9:15-cv-0198-DCN, 2015 WL 5474471, at *5 (D.S.C. Sept. 16, 2015), claims for damages arising from an inmate's conditions of confinement are properly brought pursuant to 42 U.S.C. § 1983, see Elijah v. Dobbs, No. 9:20-cv-798-JFA-BM, 2020 WL 3848018, at *3 (D.S.C. Mar. 25, 2020), Report and Recommendation adopted by 2020 WL 1899499 (D.S.C. Apr. 17, 2020).
Denial of Due Process
As to his claim for denial of due process, Plaintiff alleges that he was convicted for an 854 charge at a prison disciplinary hearing on October 25, 2019, without being allowed to confront his accuser in violation of SCDC Policy 22.14. [Id. at 4.] Plaintiff requested the opportunity to confront his accuser at the hearing. [Id.] However, Disciplinary Hearing Officer (“DHO”) Williams refused to call the accuser. [Id.] As a result of the conviction, DHO Williams sanctioned Plaintiff by placing him in lockup for approximately three months and moving him to the “worst[ ] dorm on the yard.” [Id. at 5, 7.]
According to disciplinary hearing records attached to the Complaint, an 854 charge is for “Exhibitionism and Public Masturbation.” [Doc. 1-1 at 1.]
Denial of Access to the Courts
Next, as to his claim for denial of access to the courts, Plaintiff contends certain legal documents were misplaced or intercepted by Defendant Jones, a prison mailroom employee. [Id. at 5, 7, 17, 20.] Specifically, Plaintiff filed step 1 and step 2 grievances following the disciplinary hearing on the 854 charge, but those grievances were denied.[Id. at 5.] Plaintiff then filed a notice of appeal on February 6, 2020, with the South Carolina Administrative Law Court (“SCALC”), but Defendant Jones intercepted his grievances. [Id. at 5, 7.] The administrative law judge (“ALJ”) denied Plaintiff's appeal on June 9, 2020, concluding that he had not exhausted his administrative remedies by filing a step 2 grievance. [Id. at 7.] Additionally, Plaintiff contends Defendant Jones intercepted other legal mail, interfering with Plaintiff's ability to litigate a post-conviction relief (“PCR”) action in the Colleton County Court of Common Pleas at case number 2019-cp-15-00111 and a civil rights action in this Court at case number 2:20-cv-00122. [Id. at 7, 17.]
Plaintiff has attached to his Complaint a copy of the SCDC step 2 inmate grievance form. [Doc. 1-1 at 1.] Plaintiff signed the grievance form on December 12, 2019, and the form was received by the inmate grievance counselor on December 19, 2019. [Id.] A decision denying the grievance was rendered on February 5, 2020, and Plaintiff appears to have been served with the form denying his step 2 grievance on April 27, 2020. [Id.]
Plaintiff has attached to his Complaint a copy of the order of dismissal from the SCALC dated June 9, 2020, and signed by ALJ Deborah Brooks Durden. [Doc. 1-1 at 3-4.] In that order, ALJ Durden concluded the “appeal is not eligible for review by this Court because [Plaintiff] has failed to demonstrate that he has exhausted his administrative remedies by obtaining a final agency decision.” [Id. at 3.] ALJ Durden further noted that, “[i]n his cover letter to his appeal, [Plaintiff] indicates that his Step Two Grievance was sent to him via mail on April 27, 2020 and is included with his appeal. However, this Court did not receive Appellant's Step Two Grievance.” [Id. at 3 n.1.]
Cruel and Unusual Punishment
Finally, as to his third claim, Plaintiff asserts that the conduct related to the two claims noted above are the result of a campaign of harassment being waged against him in the prison, constituting cruel and unusual punishment. [Id. at 6, 8-16.] Specifically, Plaintiff alleges Defendants violated his constitutional rights by implementing a cell phone snitch network in the prisons. [Id. at 6.] Plaintiff alleges that Defendants are enlisting inmates to participate in an “SCDC Government Gravy Train” to infiltrate the prisons with contraband to compensate the enlisted inmates for snitching and retaliating against Plaintiff. [Id.] Plaintiff alleges that SCDC, the FBI, the IRS, and SLED are conspiring together with inmates and prison officials to maintain this network. [Id. at 6, 8, 10, 13.] Plaintiff alleges Defendants have used him as bait in this network. [Id. at 10.] Plaintiff is seeking protection as a whistleblower for exposing this network. [Id. at 11.] Plaintiff asserts that he is a “KING and it[ i]s factually known that [he] has sovereignty,” but that law enforcement officers and SCDC “are practically committing TREASON by using this snitch network to hurt [him].” [Id. at 12.] Plaintiff contends Defendants are subjecting him to deliberate indifference as a result of this campaign of harassment. [Id.] Plaintiff makes numerous other allegations similar to those noted above regarding the alleged campaign of harassment.
Injuries and Relief
For his injuries, Plaintiff alleges that the ALJ denied his appeal from the disciplinary hearing, that he was moved into a disciplinary dorm and placed in lockup for approximately three months, and that he was unable to timely file an appeal in case number 2:20-cv-00122 due to Defendant Jones' intercepting his mail. [Id. at 20.] For his relief, Plaintiff requests to be compensated in the amount of $250,000 for the three months he spent in lockup and for being moved to a disciplinary dorm for one year following his disciplinary conviction on the 854 charge. [Id.] Plaintiff also asks that his disciplinary infraction be expunged from his prison record. [Id.] Additionally, Plaintiff seeks injunctive relief to stop the “on-going campaign of harassment” against him. [Id. at 19.]
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied 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). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's Complaint is 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
As noted, Plaintiff filed this action pursuant to 42 U.S.C. § 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). 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).
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). “And, although the pleading requirements of Rule 8(a) are very liberal, more detail often is required than the bald statement by plaintiff that he has a valid claim of some type against defendant.” Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (citation and internal quotations omitted). This is particularly true in a § 1983 action where “liability is personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “In order for an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.... Consequently, [defendants] must have had personal knowledge of and involvement in the alleged deprivation of [plaintiff]'s rights in order to be liable.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (internal quotation marks omitted). While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his Complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it “failed to contain any factual allegations tending to support his bare assertion”). Here, Plaintiff's Complaint is subject to summary dismissal for the reasons that follow.
Defendants are entitled to dismissal
As an initial matter, certain Defendants are entitled to dismissal from this action because they are not persons subject to suit under § 1983 or because Plaintiff has failed to state facts showing their personal involvement in the alleged unlawful conduct.
SCDC
SCDC is subject to summary dismissal because it is not a person amenable to suit under § 1983. “As to SCDC, it is well-settled that an agency of the state is not a person within the meaning of § 1983, and thus is not a proper defendant.” Weddington v. SCDC, No. 8:08-cv-1652-GRA-BHH, 2009 WL 473510, at *2 (D.S.C. Feb. 24, 2009); see also Peoples v. SCDC, No. 8:07-cv-1203-CMC-BHH, 2008 WL 4442583, at *1 (D.S.C. Sept. 25, 2008) (same). Accordingly, SCDC should be dismissed from this action.
Warden Williams, Warden Robinson, and DHO Robinson
Warden Williams, Warden Robinson, and DHO Robinson are also subject to summary dismissal because Plaintiff does not allege facts showing their direct involvement in the alleged unconstitutional conduct. Instead, Plaintiff merely names these Defendants in the caption and makes only general, vague allegations collectively against all Defendants throughout his Complaint. “However, such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable § 1983 claim.” Tracey v. Nelson, No. 1:12-cv-1614-JMC-SVH, 2012 WL 4583107, at *2 (D.S.C. Aug. 31, 2012), Report and Recommendation adopted by 2012 WL 4588205 (D.S.C. Oct. 1, 2012). Because Plaintiff makes no factual allegations in the Complaint of personal involvement against these Defendants, they are entitled to summary dismissal. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.”); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (finding the complaint was subject to summary dismissal where plaintiff made no factual allegations against the named defendants within the body of the pleading).
It is unclear to the Court whether Warden Williams and DHO Williams are the same person and whether Warden Robinson and DHO Robinson are the same person. In any case, although Plaintiff makes specific allegations against DHO Williams, he makes no specific allegations against Warden Williams, Warden Robinson, and DHO Robinson as explained above.
Further, even construing Plaintiff's claims against these Defendants as one for supervisory liability, the undersigned notes that the doctrine of respondeat superior is not applicable in § 1983 actions. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). For a supervisory official to be held liable for constitutional injuries inflicted by their subordinates, certain criteria must be established. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Specifically, a plaintiff must show that the supervisory official was (1) actually or constructively aware of a risk of constitutional injury, (2) deliberately indifferent to that risk, and (3) that an affirmative causal link exists between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Carter, 164 F.3d at 221. Here, the Complaint contains no plausible allegations against these three Defendants to demonstrate that they were aware of, or deliberately indifferent to, any constitutional risk of injury to Plaintiff. As such, the Complaint fails to state a claim upon which relief may be granted against Warden Williams, Warden Robinson, and DHO Robinson, and they should be dismissed from this action on that basis. See London v. Maier, No. 0:10-cv-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010).
Plaintiff's claims are subject to dismissal
Next, the Complaint as a whole should be dismissed because Plaintiff's allegations fail to state a claim for relief and/or are frivolous as to the three causes of action identified in the Complaint. As noted, 28 U.S.C. § 1915 permits an indigent litigant to proceed in forma pauperis and to commence a federal court action without prepaying the administrative costs of proceeding with the lawsuit. See Staley v. Witherspoon, No. 9:07-cv-195-PMD-GCK, 2007 WL 1988272, at *1 (D.S.C. July 3, 2007). However, the statute imposes limitations on such actions by permitting the Court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted” or is “frivolous or malicious.” Id. (quoting 28 U.S.C. § 1915(e)(2)(B)). A complaint is deemed frivolous when it is “clearly baseless” and includes allegations that are “fanciful,” “fantastic,” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal quotation marks omitted) (citing Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989)). Although pro se litigants are entitled to liberal construction of their pleadings, “[t]he ‘special judicial solicitude' with which a district court should view . . . pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.” Weller, 901 F.2d at 391.
The Court will address each of Plaintiff's three claims in turn below.
Denial of Due Process
Plaintiff's due process claim is asserted against DHO Williams. [Id. At 4.] Specifically, Plaintiff contends Defendant Williams violated his due process rights by refusing to allow him to confront his accuser during the prison disciplinary hearing on the 854 charge. [ Id. at 4-5.]
However, “[t]here is no constitutional right to confront and cross-examine witnesses in person during a prison disciplinary proceeding.” Sibley v. Mullins, No. 7:19-cv-00157, 2019 WL 2125841, at *1 (W.D. Va. May 15, 2019); see also Wolff v. McDonell, 418 U.S. 539, 556 (1974) (noting “the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed” and that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply”); Brown v. Braxton, 373 F.3d 501, 504 (4th Cir. 2004) (noting that “inmates are not entitled to confront the witnesses against them). Because an inmate's right “to confront and cross-examine his accusers . . . is not a right guaranteed by Wolff,” Harris v. Jennings, 873 F.2d 1438 (4th Cir. 1989), Plaintiff did not suffer any due process violations when he was convicted and sanctioned for the 854 charge. In sum, because “a prison disciplinary proceeding does not invoke a right to confront or cross-examine adverse witnesses,” Schanck v. Zych, No. 7:11-cv-00378, 2011 WL 5547132, at *2 (W.D. Va. Nov. 14, 2011) (collecting cases), Plaintiff has failed to state a claim for relief that is plausible and his claim is subject to summary dismissal, see Ackbar v. Monaco, No. 4:19-cv-1373-RMG-TER, 2019 WL 7195602, at *3 (D.S.C. Aug. 23, 2019) (summarily dismissing complaint upon finding the plaintiff had “not stated a claim of a constitutional magnitude” because “[i]nmates are not entitled to confront the witnesses against them”), Report and Recommendation adopted by 2019 WL 4784775 (D.S.C. Oct. 1, 2019), aff'd, 807 Fed.Appx. 261 (4th Cir. 2020).
Plaintiff also alleges DHO Williams' conduct violated SCDC Policy 22.14. [Doc. 1 at 4.] To the extent Plaintiff's allegations may be construed as asserting a claim premised on the violation of prison policy, “a prison official's alleged failure to follow policy is not in itself a constitutional violation” and cannot support a claim under § 1983. Fordham v. Bachman, No. 2:16-cv-249-RMG, 2016 WL 1688743, at *2 (D.S.C. Apr. 26, 2016); see also Briggs v. S.C. Dep't of Corrs., No. 9:13-cv-1348-RMG, 2014 WL 1278173, *14 n.10 (D.S.C. Mar. 27, 2014) (“even if . . . Defendants violated prison policies . . ., any violation of such policies does not constitute a violation of Plaintiff[']s constitutional rights, and is therefore not assertable in a § 1983 action”); Keeler v. Pea, 782 F.Supp. 42, 43-44 (D.S.C. 1992) (noting that § 1983 guarantees constitutional rights against violations by a state actor, but that it provides no relief against violations of state prison rules).
Denial of Access to the Courts Facts
Plaintiff's claim for denial of access to the courts is asserted against Defendant Jones, a mailroom clerk at the McCormick Correctional Institution. [Doc. 1 at 3, 5.] According to Plaintiff, Defendant Jones intercepted or misplaced legal documents and mail related to his appeal from the disciplinary hearing, a state court PCR action, and a civil rights action filed in this Court. [Id. at 5, 7, 17.] As to his appeal from the disciplinary hearing, Plaintiff contends he mailed certain documents, including a notice of appeal and step 1 and step 2 grievance forms, on February 6, 2020, but the ALJ denied his appeal on June 9, 2020, finding Plaintiff had failed to file a step 2 grievance form. [Id. at 5.] Plaintiff contends that he was unable to perfect his grievance and seek redress from the ALJ because Defendant Jones intercepted his step 2 grievance form. [Id. at 7.]
Next, Plaintiff contends Defendant Jones intercepted his legal mail in September 2020 and failed to serve him with an order of dismissal from the United States Court of Appeals for the Fourth Circuit affirming this Court's dismissal of case number 2:20-cv-00122-TMC-JDA. [Id. at 7, 17.] Because Plaintiff never received the Fourth Circuit's judgment order dismissing his appeal, he was unable to timely petition the United States Supreme Court for a writ of certiorari. [Id. at 20.]
Finally, Plaintiff contends that his legal mail related to a PCR action filed in the Colleton County Court of Common Pleas at case number 2019-cp-15-00111 went missing in December 17, 2020. [Id. at 17.] As a result, the South Carolina Attorney General had to re-serve Plaintiff with an order of dismissal in the PCR action. [Id.]
Plaintiff appears to assert that his mail being misplaced or intercepted was in retaliation for his filing a lawsuit against SCDC, SLED, the FBI, and the IRS in this Court at case number 8:20-cv-1480. [Id.] As to the reason Plaintiff believes Defendant Jones is the individual responsible for intercepting or misplacing his mail, he asserts,
Obviously Kiesha Jones intercepted my Step 2 grievance out of the mail[ b]ecause Plaintiff has had this problem out of MCCI mailroom on a S.C. PCR Order that was partially served to me from S.C. Attorney General and an U.S. Court of Appeals 4th Circuit Order.[Doc. 1 at 20.]
Law
“It is well established that prisoners have a constitutional right of access to the courts.” Warfield v. Harford Cty. Det. Ctr., No. 18-cv-3240-PWG, 2019 WL 3718956, at *2 (D. Md. Aug. 6, 2019). “[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries.” Bounds v. Smith, 430 U.S. 817, 828 (1977). “A prisoner claiming a Bounds violation must show: (i) that shortcomings in the prison's library or legal assistance program hindered his efforts to attack his sentence, directly or collaterally, or to challenge the conditions of his confinement; and (ii) that he was actually injured as a result of these shortcomings.” Hinojos v. Byars, No. 2:13-cv-1900-JFA-WWD, 2014 WL 3687400, at *8 (D.S.C. July 23, 2014). To state a claim for denial of court access, a plaintiff must allege that he has been prejudiced in pursuing non-frivolous litigation concerning his conviction or prison conditions. Lewis v. Casey, 518 U.S. 343, 350-55 (1996). The right of access to the courts is the “right to bring to court a grievance that the inmate wished to present,” and violations of that right occur only when an inmate is “hindered [in] his efforts to pursue a legal claim.” Id. Thus, a plaintiff must demonstrate that the defendants caused actual injury, such as the late filing of a court document or the dismissal of an otherwise meritorious claim. Id. at 353-54. The actual-injury requirement is not satisfied by just any type of frustrated legal claim, but instead requires that the inmate demonstrate that his “non-frivolous” civil rights legal claim has been “frustrated” or “impeded.” Id. at 353-55. “Actual injury cannot be established merely by conclusory statements that the inmate would have fared better in litigation had he or she had more or better access to legal research materials.” Jones v. Lexington Cty. Det. Ctr., 586 F.Supp.2d 444, 448 (D.S.C. 2008).
Analysis
As noted, Plaintiff's claim for denial of access to the courts appears to involve three separate incidents: (1) Defendant Jones' purported interception of his step 2 grievance form, resulting in the ALJ dismissing his disciplinary hearing appeal; (2) Defendant Jones' purported interception of the Fourth Circuit's judgment order in case number 2:20-cv-122, resulting in Plaintiff's inability to appeal to the Supreme Court; and (3) Defendant Jones' purported interception of a conditional order of dismissal in Plaintiff's PCR action, resulting in the state having to re-serve Plaintiff with that document. The Court will address each instance in turn below.
(1) The Grievance Process before the ALJ
First, to the extent Plaintiff's allegations are construed as asserting a claim for denial of access to the grievance process, that assertion is without merit because he has not stated a constitutional claim. The law is well-settled that an inmate has no constitutional right to a grievance procedure. Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 137-38 (1977). Further, even if a prison provides for a grievance procedure, violations of those procedures do not amount to a civil rights cause of action. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (dismissing a claim that prison officials retaliated against a plaintiff when he was barred access to the grievance process because “the Constitution creates no entitlement to grievance procedures or access to any such procedure”). Likewise, the failure of a prison official to follow prison procedures does not, standing alone, amount to a constitutional violation. See Keeler, 782 F.Supp. at 44 (explaining violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983); Johnson v. S.C. Dep't of Corr., No. 3:06-cv-2062-CMC-JRM, 2007 WL 904826 at *12 (D.S.C. Mar. 21, 2007) (“Plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”). As such, Plaintiff's claim that he was denied grievance proceedings is without merit and subject to dismissal. Kelly v. Lewis, No. 1:12-cv-1385, 2013 WL 3322361, at *2 (M.D. N.C. July 1, 2013) (Plaintiff's “allegations that his prison grievances were destroyed or mishandled . . . do not state a claim for relief because there is no substantive due process right to a prison grievance procedure.”).
Further, to the extent Plaintiff's allegations are construed as asserting a claim for denial of access to the courts, he has failed to state a claim because he has not alleged facts showing that a non-frivolous claim was frustrated or impeded by the alleged deprivation of access to the courts. Plaintiff contends he properly completed the step 1 and step 2 grievances and then appealed his claim to the SCALC. [Doc. 1 at 5.] The ALJ denied his appeal at the SCALC level because it had not received Plaintiff's step 2 grievance. [Id.] Plaintiff claims the ALJ did not receive his step 2 grievance because it was intercepted by Defendant Jones when Plaintiff attempted to mail his appeal documents to the ALJ. [Id.]
Nevertheless, “[a]n isolated incident of lost mail . . ., taken as true for purposes of this review, cannot support a finding, or even a reasonable inference, that [Defendant Jones] deliberately tampered with Plaintiff's legal mail or deliberately interfered with his right to access the courts.” Deal v. Mim, No. 3:12-cv-363-RJC, 2012 WL 3762483, at *3 (W.D. N.C. Aug. 29, 2012). As explained in Deal,
Plaintiff's contention that one document he attempted to mail . . . did not reach its intended destination is insufficient to establish that the Defendants “actively” interfered with his constitutional right to access the courts. At best, Plaintiff presents a colorable claim that one or more of the Defendants were negligent in the handling of his legal mail. However, “[t]he Supreme Court has made it clear that liability under § 1983 must be predicated upon a deliberate deprivation of
constitutional rights by the defendant. It cannot be predicated upon negligence.” Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992) (quotations and citations omitted) (emphasis in original).Id. at *2; see also Tate v. Davis, No. 7:21-cv-00361, 2021 WL 3037411, at *2 (W.D. Va. July 19, 2021) (“an isolated incident of mail mishandling . . . does not rise to the level of a constitutional violation”) (collecting cases).
Finally, Plaintiff has not demonstrated that he was hindered from raising his claim in this Court, and he therefore cannot show that he was denied access to the courts. Indeed, Plaintiff was able pursue his claim in this Court as is evidenced by the filing of the present action. Further, as noted supra, Plaintiff's due process claim regarding the disciplinary hearing is without merit as he has not presented a claim of constitutional magnitude. Therefore, Plaintiff has failed to show he was hindered in his efforts to pursue a non-frivolous claim.
The undersigned also notes that Plaintiff did not pursue a further appeal in the courts of South Carolina from the denial of his appeal in the SCALC, even though he could have done so. Although Plaintiff contends his claim was hindered at the SCALC level because his step 2 grievance was removed from his mail, he does not allege facts showing he attempted to correct that error and was thwarted, and he does not explain “why he failed to file an appeal of the Administrative Law Court's decision” to the state's appellate courts. Moultrie v. Reynolds, No. 9:15-cv-0198 DCN, 2015 WL 5474471, at *6 (D.S.C. Sept. 16, 2015). The fact that Plaintiff did not appeal the ALJ's decision, even though it was seemingly made in error, or attempt to correct that error in the state appellate courts suggests that he was not hindered in pursuing a non-frivolous claim because he simply did not attempt to further litigate his claim.
(2) Federal Court Action, 2:20-cv-122
As to Plaintiff's allegations that Defendant Jones' conduct interfered with his ability to perfect his appeal to the United States Supreme Court in case number 2:20-cv-122 constituting a denial of access to the courts, that claim is without merit. The undersigned has carefully reviewed the docket in that case and summarizes the procedural history as follows. See Fishbourne v. Colleton Cty. Solic. Off., No. 2:20-cv-00122-TMC-JDA (D.S.C. Jan. 10, 2020). Plaintiff commenced that action by filing a civil rights complaint in the Colleton County Court of Common Pleas. Id., Doc. 1-1. The crux of that action was Plaintiff's claim that he was being held in custody in violation of his constitutional rights for his underlying convictions in the Colleton County Court of General Sessions. Id., Doc. 1-1 at 3. The defendants removed that action to this Court on January 10, 2020, and later filed a motion to dismiss. Id., Docs. 1, 7. Plaintiff timely filed a response in opposition to the motion to dismiss on January 31, 2020. Id., Doc. 13. Plaintiff also filed numerous other motions, oppositions, and responses, including a motion to amend/correct the complaint, a motion to appoint counsel, a motion for in camera inspection, a motion for production of documents, and a motion alleging denial of access to the courts. Id., Docs. 14, 15, 16, 30, 38. On March 16, 2020, the undersigned entered a report recommending that the district judge dismiss the action as frivolous. Id., Doc. 41. Plaintiff filed objections to the report and recommendation on April 2, 2020. Id., Doc. 47. Then, by order dated April 7, 2020, the Honorable Timothy M. Cain adopted the report and recommendation and dismissed the action as frivolous and barred by Heck v. Humphrey, 512 U.S. 477 (1994). Id., Doc. 50. Plaintiff timely filed a notice of appeal on April 17, 2020. Id., Doc. 53. On September 29, 2020, the Fourth Circuit Court of Appeals issued a judgment order and opinion affirming the district court's order of dismissal and issued a mandate on October 22, 2020. Id., Docs. 61, 62.
Based on the foregoing summary, the undersigned makes the following observations. First, other than ambiguously alleging that Defendant Jones intercepted or misplaced his legal mail in September 2020 [see Doc. 1 at 7, 20], Plaintiff has not alleged facts showing how Defendant Jones prevented Plaintiff from timely filing a petition for writ of certiorari to the United States Supreme Court or interfered with any attempt to do so. “The courts have uniformly recognized that relatively isolated or short-term disruption in the delivery or receipt of an inmate's mail does not rise to the level of a constitutional deprivation.” Blake v. Stepp, No. 3:20-cv-00178, 2020 WL 2950411, at *2 (S.D. W.Va. Apr. 30, 2020) (collecting cases), Report and Recommendation adopted by 2020 WL 2945556 (S.D. W.Va. June 3, 2020). Here, Plaintiff has not alleged facts showing that Defendant Jones “deliberately, regularly, and unjustifiably interfered with his mail” and “he states no facts upon which to infer that this isolated event was the result of an improper motive or something more purposeful than mere human error.” Id. And, Plaintiff has not explained why he was unable to file his appeal to the United States Supreme Court even though he did not receive his mail in September 2020.
Indeed, the Court notes that, pursuant to Rule 13 of the Supreme Court Rules, a petition for a writ of certiorari “is timely when it is filed with the Clerk of [the Supreme Court] within 90 days after entry of the judgment.” The Fourth Circuit entered an opinion and judgment order on September 29, 2020, and entered a mandate on October 21, 2020. See Fishbourne v. Colleton Cty. Solic., No. 20-6521 (4th Cir. Apr. 20, 2020), Docs. 13, 14, 15. Plaintiff had 90 days from the date of judgment-September 29, 2020-to file his petition with the Supreme Court; therefore, his deadline for filing was December 28, 2020. Plaintiff has not alleged facts showing that he did not learn of the Fourth Circuit's judgment or was unable to further appeal that judgment prior to the expiration of the December 28, 2020, deadline.
Additionally, Plaintiff cannot show that he was hindered from litigating a non-frivolous claim in court. This is so because Plaintiff's action at case number 2:20-cv-122 was patently frivolous. Indeed, although fashioned as a civil rights action, that case was simply an improper attempt to challenge Plaintiff's conviction after he had failed in his numerous prior attempts to challenge his conviction in both state and federal court. In sum, Plaintiff has failed to allege facts showing “that a non-frivolous claim was frustrated or impeded by the alleged deprivation of access to the courts” and his claim is therefore subject to summary dismissal. Dowdle v. Quinn, No. 6:10-cv-00031-MBS-KFM, 2010 WL 3938387, at *3 (D.S.C. Sept. 8, 2010), Report and Recommendation adopted by 2010 WL 3927808 (D.S.C. Oct. 5, 2010). Accordingly, “[e]ven if the court were to assume that [Plaintiff] met the first prong of the Bounds test, this claim still fails because he has not shown he was injured by it,” Hinojos, 2014 WL 3687400, at *8, as a review of the record shows Plaintiff filed a plethora of motions and oppositions in his case, and, critically, he was attempting to litigate a patently frivolous claim.
In the state court, Plaintiff filed at least seven PCR actions in the Colleton County Court of Common Pleas at case numbers 2002-cp-15-00628, 2009-cp-15-00670, 2013-cp-15-00326, 2014-cp-15-00480, 2019-cp-15-00111, 2019-cp-15-921, and 2019-cp-15-01018. In this Court, Plaintiff filed three habeas actions seeking to challenge his conviction and sentence at case numbers 2:07-cv-834, 8:12-cv-2148, and 8:13-cv-2453.
(3) State Court PCR Action, 2019-cp-15-00111
Finally, upon review of the PCR court's docket at case number 2019-cp-15-00111, the Court concludes there is no evidence that Plaintiff missed any deadlines or was prevented from litigating his PCR action. Rather, it appears that Plaintiff was given the opportunity to respond to the conditional order of dismissal as well as all other orders and motions filed in that case.
The filings from Plaintiff's PCR action can be accessed at Fishbourne v. State, No. 2019-cp-15-00111, available at the Colleton County Fourteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/colleton/publicindex/ (search by case number “2019cp1500111”) (last visited Sept. 23, 2021).
Briefly, Plaintiff commenced his PCR action by filing a petition dated January 17, 2019, which was entered on the docket on February 15, 2019. The State of South Carolina filed a return to the petition and a motion to dismiss on October 20, 2020. The Honorable Deadra L. Jefferson entered a conditional order of dismissal on November 23, 2020, requiring Plaintiff to show cause why the order should not become final within 20 days from the date of its service. Plaintiff then filed a letter, dated January 1, 2021, which was entered on the docket on February 16, 2021, explaining that he had received only a partial copy of the conditional order of dismissal on December 17, 2020, and that several pages of that order were missing. Plaintiff requested additional time to respond to the conditional order of dismissal and asked that a copy of the entire order be provided to him. Plaintiff then filed a response to the conditional order of dismissal, which was entered on the docket on February 22, 2021. Judge Jefferson entered a final order of dismissal on March 17, 2021, dismissing the PCR action as successive and time-barred. Petitioner filed a motion to alter or amend the judgment on April 8, 2021, and then filed a notice of appeal on April 27, 2021.
Based on the foregoing, the undersigned makes two observations. First, Plaintiff had the opportunity to respond to each and every order and motion filed in his PCR action. Indeed, Plaintiff filed numerous letters and motions at every stage of that proceeding. And, importantly, Plaintiff was afforded the opportunity to file a response to the conditional order of dismissal after notifying the court that he had not received a complete copy of the court's order when it was served on him in December 2020. Second, the PCR action involved a meritless, frivolous claim and was dismissed as time-barred and successive-not because of any inability of Plaintiff to litigate his claim or access the court. As the PCR court noted, Plaintiff filed his PCR action more than seventeen years after the statutory filing period expired, and he had previously filed numerous other PCR actions in the state court as well as federal court habeas actions. Accordingly, there is no indication that Plaintiff suffered any prejudice in the PCR proceeding, and Plaintiff has not stated facts showing an actual injury. Bunch v. Thomas, No. 4:07-cv-36973-HFFT, 2008 WL 1736837, at *3 (D.S.C. Apr. 15, 2008) (“[E]ven assuming the Defendant acted deliberately, Plaintiff does not allege any specific facts that would tend to show that a pending non-frivolous legal case, or any other legal matter, has been adversely affected due to his alleged mail problems.”). Therefore, Plaintiff's claim as to this incident should be dismissed for lack of merit as “[t]he filings in this case and the PCR action evidence that Plaintiff ha[d] meaningful access to the court.” Hinojos, 2014 WL 3687400, at *8 (finding an inmate failed to state a claim for denial of access to the courts where prison officials allegedly hindered his ability to file a time-barred PCR action).
Indeed, the undersigned further notes that Plaintiff filed a notice of appeal with the South Carolina Supreme Court from Judge Jefferson's denial of his successive, time-barred PCR action. By order dated June 15, 2021, the Supreme Court dismissed Plaintiff's appeal and further ordered, “we prohibit [Plaintiff] from filing any further collateral actions in the circuit court, including PCR actions and habeas corpus actions, as well as any motions relating to the previously filed collateral actions, challenging his 2001 convictions and sentences . . . or any motions in the underlying criminal case . . . without first obtaining permission to do so from this Court.” See Fishburne v. State, Case No. 2021-000386 (S.C. Jun. 15, 2021).
As such, Plaintiff's claim for denial of access to the courts as to all three incidents is subject to dismissal.
Additionally, the undersigned notes that Plaintiff has not exhausted his claim for denial of access to the courts through the prison's administrative grievance process. “[T]he PLRA requires a prisoner to exhaust his administrative remedies, even if the relief requested is not available under the administrative process. Thus, the exhaustion requirement applies to all inmate lawsuits challenging prison life.” Hayes v. Stanley, No. 503-CT-759, 2006 WL 4128485, at *3 (W.D. N.C. Jan. 30, 2006). Exhaustion is not a pleading requirement; instead, a defendant must plead and prove failure to exhaust. Id. However, in “rare case[s],” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005), “[a] court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies,” Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). Although Plaintiff attempted to exhaust his administrative remedies as to his due process claim related to the disciplinary hearing [Docs. 1 at 21-23; 1-1 at 1], he has not alleged facts showing that he attempted to exhaust his administrative remedies as to his claim for denial of access to the courts. Plaintiff's access to the courts claim is distinct from his disciplinary hearing grievances, and he must first exhaust his remedies as to the claim for denial of access to the courts before litigating that claim in this Court. See DeVine v. Koppel, No. DKC-13-cv-1920, 2014 WL 4295000, at *5 (D. Md. Aug. 29, 2014) (“The failure to exhaust administrative remedies on any of the claims raised is fatal to all of his claims.”).
Cruel and Unusual Punishment
Finally, Plaintiff's claim for cruel and unusual punishment is subject to dismissal because the allegations are frivolous and his claim is duplicative. By way of summary, Plaintiff alleges that Defendants have created a cell phone network to control the prisons [Doc. 1 at 6]; that Defendants use this network to wage a campaign of harassment targeting Plaintiff [id.]; that Defendants place contraband in cafeteria food and canteen and commissary items to reward snitches who work with them [id. at 6, 8]; that Defendants are conspiring with SCDC, the FBI, SLED, the IRS, and various government agents to create a “Gravy Train” with inmates [id. at 6, 8, 10, 13]; that Defendants and the government agencies are targeting Plaintiff because he has exposed their scheme [id. at 14]; that the government agencies are controlling gang leaders in prison through this network and encouraging gangs to attack Plaintiff [id.]; and that Plaintiff is a sovereign king and Defendants are committing treason against him [id. at 12].
Presuming that Plaintiff has set forth his allegations sincerely, as assertions of fact, they cannot be given credibility. A district court's review of a case for factual frivolousness under § 1915 is guided by the Supreme Court's decision in Denton. See Thomas v. Barri, No. 8:10-cv-0431-MBS-BHH, 2010 WL 1993881, at *2-3 (D.S.C. Mar. 3, 2010), Report and Recommendation adopted by 2010 WL 1993860 (D.S.C. May 18, 2010). When a plaintiff proceeds in forma pauperis, § 1915 “gives courts the authority to ‘pierce the veil of the complaint's factual allegations[,]' mean[ing] that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32. The “initial assessment of the in forma pauperis plaintiff's factual allegations must be weighted in favor of the plaintiff,” Id., and “[a]n in forma pauperis complaint may not be dismissed . . . simply because the court finds the plaintiff's allegations unlikely.” Id. at 33. However, the district court is entrusted with the discretion to dismiss the case for factual frivolousness “when the facts alleged rise to the level of the irrational or the wholly incredible.” Id. “[A] court may dismiss a claim as factually frivolous only if the facts alleged are ‘clearly baseless', a category encompassing allegations that are ‘fanciful,' ‘fantastic,' and ‘delusional.'” Id. at 32-33 (citations omitted) (quoting Neitzke, 490 U.S. at 325, 328). In reviewing for frivolity, the Court looks to see whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Harley v. United States, 349 F.Supp.2d 980, 981 (M.D. N.C. 2004).
Here, Plaintiff's Complaint is comprised of factual allegations that are wholly incredible and which fail to state a claim for relief that is plausible. The undersigned finds that Plaintiff's bare allegations clearly fall within the statute's definition of frivolity, see e.g., McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (noting examples of frivolous claims include those whose factual allegations are “so nutty,” “delusional,” or “wholly fanciful” as to be simply “unbelievable” (internal quotation marks and citations omitted)), and his conclusory assertions fail to show any arguable basis in fact or law, see, e.g., Brock v. Angelone, 105 F.3d 952, 953-54 (4th Cir. 1997) (finding a prisoner's claim, that he was being poisoned or experimented upon via an ingredient in pancake syrup served at his prison, was fanciful or delusional, and dismissing the appeal as frivolous with sanctions); Neal v. Duke Energy, No. 6:11-cv-1420-HFF-KFM, 2011 WL 5083181, at *4 (D.S.C. June 30, 2011), Report and Recommendation adopted by 2011 WL 5082193 (D.S.C. Oct. 26, 2011) (dismissing action upon finding plaintiff's factual allegations were frivolous, fanciful, and delusional where plaintiff claimed defendants clandestinely placed a GPS device in her car while it was in the shop for repairs and that they were stalking her, noting the allegations were “made without any viable factual supporting allegations and appear[ ] to be the product of paranoid fantasy”).
Further, to the extent Plaintiff is attempting to assert a tort claim sounding in state law by alleging Defendants are waging a “campaign of harassment” against him, any such claim fails because purely state law claims are not actionable under § 1983. See Paul v. Davis, 424 U.S. 693, 697-710 & nn.3-4 (1976) (finding that “any harm or injury to [Plaintiff's interest in his reputation], even where as here inflicted by an officer of the State, does not result in a deprivation of any ‘liberty' or ‘property' recognized by state or federal law”); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987) (noting negligence, in general, is not actionable under 42 U.S.C. § 1983). Plaintiff appears to allege Defendants have engaged in defamation, negligence, and other torts sounding in state law. [See Doc. 1 at 10 (“Defendants recklessly used Plaintiff as bait in a prison environment to create a snitch network designed to defame Plaintiff's character.”), 13 (“Plaintiff has 3 state tort claims resulting from this network.”).] However, § 1983 does not impose liability for violations of duties of care arising under a state's tort law. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200-03 (1989); Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable under the laws of most states, but not a constitutional deprivation.”); Pink v. Lester, 52 F.3d 73, 75-78 (4th Cir. 1995) (explaining a claim for negligence is not cognizable under § 1983). Accordingly, Plaintiff's allegations concerning purely state law claims of defamation or negligence fail to establish a claim for a violation of a federal right as required under § 1983, and any such claim is subject to dismissal from this action. Wilson v. Ozmint, No. 3:10-cv-2887-RMG, 2011 WL 1336391, at *1-2 (D.S.C. Apr. 7, 2011).
Finally, the undersigned notes that Plaintiff's claim for cruel and unusual punishment should be dismissed on the additional basis that it is duplicative of a similar claim asserted in a prior action. See Fishbourne v. FBI, No. 8:20-cv-01480-TMC-JDA (D.S.C. Apr. 17, 2020), Doc. 1 (alleging the FBI, SCDC, IRS, and SLED were engaging in a campaign of harassment against Plaintiff by implementing a cell phone snitch network in the prison). That action was summarily dismissed as frivolous. Id., Doc. 26 (adopting Report and Recommendation at Doc. 22). Here, Plaintiff makes allegations concerning Defendants' campaign of harassment and implementation of a snitch network, like he did in his prior action. Thus, the Court finds that Plaintiff's claims in the instant Complaint are substantially duplicative of the other action he previously filed in this Court. “Because district courts are not required to entertain duplicative or redundant lawsuits, they may dismiss such suits as frivolous pursuant to [section] 1915(e).” Cottle v. Bell, No. 00-6367, 2000 WL 1144623, at *1 (4th Cir. 2000) (citations omitted). Given the similarities between the allegations in the prior action and those in the present action, Plaintiff's claim in this action should be dismissed for frivolity as they are duplicative. See, e.g., Harrison v. South Carolina, 126 Fed.Appx. 100, 101 (4th Cir. 2005); Shaw v. Byars, No. 9-12-cv-2830-RBH, 2012 WL 6138325, at *2 (D.S.C. Dec. 11, 2012).
Dismissal of this action should be deemed a “strike”
As noted, the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e (“PLRA”), requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). Specifically, the PLRA contains a “three strikes” rule, codified at 28 U.S.C. § 1915(g), which provides:
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.28 U.S.C. § 1915(g). The PLRA's three strikes rule was enacted to bar prisoners who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)).
Plaintiff is a frequent filer. Because the Complaint is subject to summary dismissal for failure to state a claim and for being frivolous, and because certain claims in this action are duplicative of prior frivolous claims filed in other cases in this Court, the undersigned recommends that this case be deemed a strike for purposes of the PLRA's three strikes rule. See Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1727 (2020) (“A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.”).
CONCLUSION
Consequently, for the reasons stated above, it is recommended that the District Court dismiss this action without issuance and service of process pursuant to 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). Further, it is recommended that the dismissal be counted as a strike pursuant to 28 U.S.C. § 1915(g).
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because further amendment would be futile. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 610-12, 614-15 (4th Cir. 2020); Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).