Opinion
8:21-cv-03542-TMC-JDA
12-12-2022
Ricardo Fishburne, a/k/a Ricardo Fishbourne, Plaintiff, v. S.C. Department of Corrections, A/W Anne Sheppard, Warden Brian Kendell, A/W Clark, Director Brian Stirling, Sergeant Howard, Classification Ravenel, SLED, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge Greenville, South Carolina.
This matter is before the Court on Defendants' motion for summary judgment [Doc. 72], Plaintiff's motion for temporary restraining order and/or for a preliminary injunction [Doc. 77], Plaintiff's motion for declaratory judgment [Doc. 80], and Plaintiff's motion for joinder [Doc. 169]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review all pretrial matters in prisoner civil rights cases, such as this one, and to submit findings and recommendations to the District Court.
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (?SCDC”) and is presently incarcerated at the Lieber Correctional Institution. [Doc. 128.] Proceeding pro se, Plaintiff filed this action in the Richland County Court of Common Pleas on August 31, 2021, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. [Doc. 1-1 at 10-26.] Defendants removed the action to this Court on October 28, 2021. [Doc. 1.] Prior to removal, Plaintiff filed a motion to amend and/or correct the Complaint [Doc. 8] and a second motion to amend and/or correct the Complaint [Doc. 9]. By Order dated November 3, 2021, this Court denied Plaintiff's motions to amend as moot pursuant to Rule 15(a) of the Federal Rules of Civil Procedure as Plaintiff was permitted to amend his Complaint as a matter of course. [Docs. 12 at 1; 13.] The Court therefore construes the original hand-written document filed in the state court along with Plaintiff's two amendments together as the Complaint in this action. On November 4, 2021, Defendants filed an Answer to the Complaint. [Doc. 16.]
On March 25, 2022, Defendants filed a motion for summary judgment. [Doc. 72.] On March 28, 2022, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 73.] On April 8, April 11, April 22, and May 11, 2022, the Clerk docketed responses from Plaintiff opposing summary judgment. [Docs. 81; 85; 96; 105.] On April 29, 2022, Defendants filed a reply. [Doc. 99.]
On March 31, 2022, the Clerk docketed Plaintiff's motion for temporary restraining order and/or preliminary injunction and Plaintiff's motion for declaratory judgment. [Docs. 77; 80.] On April 14, 2022, Defendants filed a response in opposition to both motions. [Doc. 90.] On November 7, 2022, the Clerk docketed Plaintiff's motion for joinder. [Doc. 169.] Defendants did not file a response.
All of the pending motions are ripe for review. The undersigned notes that numerous other motions were previously filed by the parties and ruled on by the Court. The undersigned has carefully reviewed the entire record before the Court in evaluating the four pending motions.
BACKGROUND
The Complaint is difficult to decipher and appears to contain allegations similar to allegations that Plaintiff has made in other recent actions filed in this Court at case numbers 8:21-cv-2964 and 8:20-cv-1480. Here, Plaintiff alleges that his custody level designation is “med-2.” [Doc. 1-1 at 13.] Despite this custody level designation, Defendants have housed Plaintiff in a “level 3 prison in a high Alfa gang unit.” [Id.] Plaintiff asserts that he has filed other lawsuits regarding his custody designation because gang members have stabbed Plaintiff on numerous occasions. [Id.] According to Plaintiff, even though he has “several pending restraining orders in his pending lawsuits,” Defendants continue to house him in “violent gang units.” [Id.] According to Plaintiff, Defendants have failed to protect him in violation of the Eighth Amendment. [ Id. at 13-14.]
The Court takes judicial notice of Plaintiff's other cases filed in this Court, including case numbers 2:07-cv-0834, 8:12-cv-2148, 8:13-cv-2453, 2:20-cv-0122, 8:20-cv-1480, and 8:21-cv-2964. See Philips v. Pitt Cnty. 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.'”).
Plaintiff alleges that, on one occasion, the mailroom lady lured him out of his cell, claiming to have legal mail for him. [Id. at 14.] After going to the mailroom, Plaintiff walked past a cell and some other inmates asked him to step into that cell because someone needed to speak to him. [Id.] When Plaintiff entered the cell, 5 gang members surrounded him, “lynched” him, and knocked him unconscious. [Id.] These gang members repeatedly kicked and punched Plaintiff, stabbed him above the eye, urinated on him, and stole his shoes. [Id.] Plaintiff was eventually able to flee and was then taken to medical. [Id. at 15.] Plaintiff alleges that, prior to this incident, he had complained to Defendants that he was in danger; however, Defendants failed to protect him. [Id.]
Plaintiff contends that this incident “stems from SCDC/Government FBI etc. using the Plaintiff as bait to build [an] intelligence/snitch network via cellphones with inmates.” [ Id. at 15-16.] Plaintiff makes numerous allegations concerning his belief that he is being targeted by government agencies, including the FBI, IRS, DEA, SLED, SCDC, and others, in a “campaign of harassment” that has led gang members in prison to “hunt” him down and attack him. [Id. at 17-24.]
For his relief, Plaintiff requests that the Court issue an injunction ordering his transfer to a mental health hospital and/or to an out-of-state or federal prison and that the Court award him $10 million in damages. [Id. at 24.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘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)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Requirements for a Preliminary Injunction
A preliminary injunction is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 188 (4th Cir. 2013) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (internal quotation marks omitted). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)) (internal quotation marks omitted). Because granting a motion for preliminary injunctive relief “requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way[,] [t]he danger of a mistake in this setting is substantial.” Hughes Network Sys., Inc. v. InterDigital Commc'ns Corp., 17 F.3d 691, 693 (4th Cir. 1994) (quoting Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd., 780 F.2d 589, 593 (7th Cir. 1986)) (internal quotation marks omitted). Accordingly, the decision whether to grant a preliminary injunction is committed to the equitable discretion of the district court. See Salazar v. Buono, 559 U.S. 700, 714 (2010); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007).
The current standard for granting preliminary injunctive relief is set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Under Winter, to obtain a preliminary injunction, the moving party must demonstrate:
1) he is likely to succeed on the merits,
2) he will suffer irreparable harm if the preliminary injunction is not granted,
3) the balance of equities favors him, and
4) the injunction is in the public interest.555 U.S. at 20; see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Moreover, Winter requires that each preliminary injunction factor “be 'satisfied as articulated.'” Pashby v. Delia, 709 F.3d 307, 320-21 (4th Cir. 2013) (quoting The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, Citizens United v. FEC, 558 U.S. 310 (2010), aff'd, The Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) (per curiam)). To succeed, Plaintiff must satisfy all four of these requirements. Pashby, 709 F.3d at 320-21. Therefore, the movant bears a heavy burden in seeking a preliminary injunction. Id. at 321.
DISCUSSION
Defendants' Motion for Summary Judgment
Defendants have moved for summary judgment on a number of grounds. [Doc. 72.] First, Defendants contend the Complaint fails to state a claim for relief, is frivolous, and/or is duplicative of other actions previously dismissed by this Court. [Doc. 72-1 at 4-7.] Second, Defendants contend “Plaintiff cannot show that his allegations that form the basis for his claims are plausible or are based in fact.” [Id. at 7-8.] Third, Defendants contend that Plaintiff has failed to allege the personal involvement of the individual Defendants. [Id. at 8-9.] Fourth, Defendants contend that Plaintiff has failed to exhaust his administrative remedies. [Id. at 9-13.] Fifth, Defendants contend that SCDC and SLED should be dismissed as Defendants as they are not “persons” amenable to suit under § 1983. [Id. at 13-15.] Sixth, Defendants contend that the individual Defendants are not “persons” amenable to suit under § 1983 in their official capacities. [Id. at 14.] The undersigned agrees with each argument and finds, for the reasons below, that summary judgment is proper in favor of Defendants upon the record before the Court.
This action is duplicative
To begin, the undersigned notes that the Complaint in this case makes nearly identical allegations against many of the same Defendants as those made in at least two other actions previously filed in this Court at case numbers 8:20-cv-1480 and 8:21-cv-2964, as summarized below.
First, in April 2020, Plaintiff filed an action in this Court pursuant to 42 U.S.C. § 1983 against the FBI, SCDC, IRS, and SLED. See Fishbourne v. FBI, No. 8:20-cv-1480-TMC-JDA (D.S.C. Apr. 17, 2020) (“Fishburne I”). In that action, as in the present action, Plaintiff alleged that the defendants “set a trap for Plaintiff to use Plaintiff as bait” and that he was “lynched approx[imately] 9 times by inmates trying to force Plaintiff to make an announcement to inmate population that there's one or two cellphone networks.” Id., Doc. 16 at 5-6. That action was summarily dismissed on May 28, 2020. Id., Doc. 26 (adopting Report and Recommendation at Doc. 22). On December 29, 2020, the Fourth Circuit Court of Appeals affirmed the dismissal. Id., Doc. 38.
Next, in September 2021, Plaintiff filed an action in this Court pursuant to 42 U.S.C. § 1983 against Warden Williams, Warden Robinson, SCDC, DHO Williams, DHO Robinson, and Kiesha Jones. See Fishbourne v. Williams, No. 8:21-cv-2964-TMC-JDA (D.S.C. Sept. 15, 2021) (“Fishburne II”). In that action, as in the present action, Plaintiff alleged that various actors within and without SCDC were engaged in a conspiracy to wage a “campaign of harassment” against him and that he was being unfairly targeted by prison officials who had created a “snitch” network by infiltrating the prison with contraband including cell phones. Id., Doc. 1 at 4, 6, 8, 10-13. That action was summarily dismissed on June 30, 2022. Id., Doc. 29 (adopting Report and Recommendation at Doc. 11).
Based on a review, the undersigned concludes that this action is subject to dismissal because the parties, the claims, and the operative facts in this action are duplicative of those in the prior actions filed by Plaintiff in this Court. See Crowe v. Leeke, 550 F.2d 184, 186 (4th Cir. 1977) (“The principle of res judicata . . . is fully applicable in prisoners' civil rights suits brought under [§] 1983.”). “Collateral estoppel, or issue preclusion, provides that once a court of competent jurisdiction actually and necessarily determines an issue, that determination remains conclusive in subsequent suits, based on a different cause of action but involving the same parties, or privies, to the previous litigation.” Weinberger v. Tucker, 510 F.3d 486, 491 (4th Cir. 2007) (citation omitted).
Plaintiff previously litigated his claims in this Court. See Fishbourne I; Fishbourne II. Those cases were decided on the merits, and Plaintiff lost. Thus, Plaintiff's claims in this action for damages under § 1983 are barred under res judicata. See Boston v. Stobbe, 586 F.Supp.2d 574, 580 (D.S.C. 2008) (explaining res judicata precluded an inmate's § 1983 action based on the court's determination of the same issues in a prior habeas action). Accordingly, having previously lost in his cases filed in this Court, Plaintiff is precluded from taking another bite at the apple. See Wells v. Powers, No. 2:16-cv-1060-TMC-MGB, 2016 WL 6070088, at *4 (D.S.C. Sept. 12, 2016), Report and Recommendation adopted by 2016 WL 6039163 (D.S.C. Oct. 14, 2016). The present case should thus be dismissed as duplicative.
The Complaint fails to state a claim for relief and/or is frivolous
Further, the Complaint as a whole should be dismissed because Plaintiff's allegations are frivolous and fail to state a claim for relief. 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)). A district court is entrusted with the discretion to dismiss a 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 frivolousness or malice, 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) (citing Neitzke, 490 U.S. 319). It is well-settled that the Court has the authority to dismiss claims that are obviously “fantastic” or “delusional.” Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994); Raiford v. FBI, No. 1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), Report and Recommendation adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the irrational or the wholly incredible”).
Here, Plaintiff's Complaint contains assertions that are manifestly delusional, “wholly incredible,” and which fail to state a claim for relief. As noted, the Complaint asserts that Defendants are operating an “intelligence/snitch” cell phone network to control the prisons, causing “danger to Plaintiff” [Doc. 1-1 at 15-16, 38]; that Defendants are housing Plaintiff “in violent gang units even though [he] does not have even a fighting disciplinary charge in 20 [years]” [id. at 13]; that Defendants have defamed Plaintiff's character “by using [him] as bait to lure in informants inmates on cellphones in prison” [id. at 16]; and that Defendants are employing “telepathy hunting [Plaintiff's] mind's address” [id. at 18]. The Court finds that these and the other bare allegations, which are wholly unsupported by any evidence, clearly fall within the definition of frivolity. See 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)); Simmons v. Clinton Police Dep't, No. 7:14-cv-248-BO, 2014 WL 7151242, at *2 (E.D. N.C. Dec. 12, 2014). Plaintiff's 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 she was being stalked by the defendants, noting the allegations were “made without any viable factual supporting allegations and appears to be the product of paranoid fantasy”).
Further, the Court is unable to grant Plaintiff's requested relief to be placed in protective custody or transferred to a different prison. This is so because there is no constitutional right for a state prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See McKune v. Lile, 536 U.S. 24, 26 (2002) (noting that the “decision where to house inmates is at the core of prison administrators' expertise”); Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that the Constitution's Due Process Clause does not “protect a duly convicted prisoner against transfer from one institution to another within the state prison system”). The placement and assignment of inmates into particular institutions or units by state corrections departments are discretionary functions, and those decisions are not subject to review unless state or federal law places limitations on official discretion. See Hayes v. Thompson, 726 F.2d 1015, 1017 (4th Cir. 1984). South Carolina law confers no protected liberty interest upon SCDC inmates from being placed in a particular prison, in a particular section of the prison, or being placed in administrative segregation. See Phillips v. South Carolina Dep't of Corr., No. 8:10-cv-1331-HFF-BHH, 2010 WL 2756910, at *2 (D.S.C. June 17, 2010), Report and Recommendation adopted by 2010 WL 2754223 (D.S.C. July 12, 2010). Because Plaintiff has been committed to the custody of SCDC, the choices related to Plaintiff's housing are to be determined by SCDC prison officials without interference by the federal courts. See Cooper v. Riddle, 540 F.2d 731, 732 (4th Cir. 1976) (noting that the district court properly found that a prison committee's decisions regarding institutional placement, security classifications, and job assignments were not subject to constitutional scrutiny). Accordingly, the Complaint is frivolous and Plaintiff has failed to state a claim for relief that is plausible.
Defendants are entitled to dismissal
Next, Defendants are each entitled to dismissal from this action because they are not persons subject to suit under § 1983, because Plaintiff has failed to state facts showing their personal involvement in the alleged unlawful conduct, and/or because Defendants are entitled to immunity from suit.
SCDC and SLED
First, SCDC and SLED are subject to summary dismissal because they are not considered “persons” amenable to suit under § 1983. “As to SCDC [and SLED], 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) (noting SCDC is not a person); Blakney v. S.C. L. Enf't Div., No. 5:21-CT-3080-M, 2022 WL 779998, at *3 (E.D. N.C. Feb. 23, 2022) (noting SLED “is not a person within the meaning of § 1983”), aff'd, No. 22-6293, 2022 WL 2315023 (4th Cir. June 28, 2022).
Further, Defendants SCDC and SLED are agencies of the State of South Carolina that have Eleventh Amendment immunity from a suit for damages brought in this Court. See Belcher v. South Carolina Bd. of Corr., 460 F.Supp. 805, 808-09 (D.S.C. 1978). The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina or its integral parts. U.S. Const. amend. XI; see also Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996); Bellamy v. Borders, 727 F.Supp. 247, 248-50 (D.S.C. 1989). SCDC and SLED, as South Carolina state agencies, are both an integral part of the State and, thus, entitled to Eleventh Amendment immunity in this case. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). Such immunity extends to arms of the state and also bars this court from granting injunctive relief against the State or its agencies. See Alabama v. Pugh, 438 U.S. 781 (1978). SCDC and SLED, as state agencies, have immunity from suit under § 1983. See S.C. Code Ann. § 23-3-10 (establishing SLED as an agency of the State of South Carolina); Abebe v. S.C. Dep't of Corr., No. 0:09-cv-3111-MBS-PJ, 2010 WL 2991595, at *2 (D.S.C. July 2, 2010) (“As a state agency, SCDC is an arm of the State of South Carolina.”), Report and Recommendation adopted by 2010 WL 3258595 (D.S.C. Aug. 16, 2010). Under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 (1984), a state must expressly consent to suit in a federal district court. However, the State of South Carolina has not consented to suit in federal court. See S.C. Code § 15-78-20(e) (1976) (South Carolina statute expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another State). Because the Eleventh Amendment bars the relief that Plaintiff requests against SCDC and SLED, the Complaint fails to state a claim against these Defendants and, as a result, they should be dismissed from this action.
Individual Defendants
Defendants A/W Anne Sheppard, Warden Brian Kendell, A/W Clark, Director Brian Stirling, Sergeant Howard, and Classification Ravenel (the “individual Defendants”) are also subject to summary dismissal because Plaintiff does not allege facts showing their direct involvement in any 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 the individual Defendants, they are entitled to 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).
Further, construing Plaintiff's claims against these individual 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 individual 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 the individual Defendants, 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).
Additionally, the individual Defendants are entitled to dismissal in their official capacities as they are not proper parties. “A section 1983 action seeking civil damages against state officials acting in their official capacities is inappropriate because they are not ‘persons' within the meaning of the statute.” Hailstock v. Wallace, 940 F.2d 652 (4th Cir. 1991) (citing Will v. Michigan State Police, 491 U.S. 58 (1989)).
As such, all of named Defendants are entitled to dismissal from this action for the reasons stated.
Plaintiff has failed to exhaust his administrative remedies
Finally, in addition to each of the forgoing reasons for dismissal of the Complaint, Defendants also argue that summary judgment is proper as Plaintiff has failed to exhaust his administrative remedies. [Doc. 72 at 9-13.] The Court agrees.
Section 1997e(a) of the PLRA provides that “no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25 (2002). Consequently, the PLRA's exhaustion requirement is mandatory and “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Id. at 524, 532. The exhaustion requirement applies even if the relief sought in the civil action is not available in the administrative proceedings. See Booth v. Churner, 532 U.S. 731, 741 (2001).
Because exhaustion is defined by each prison's grievance procedure and not the PLRA, a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. See Jones v. Bock, 549 U.S. 199, 218 (2007). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . .” Woodford v. Ngo, 548 U.S. 81, 90 (2006). An inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (upholding dismissal of an inmate's complaint because the inmate failed to proceed beyond the first step in the administrative grievance process). Courts within the District of South Carolina have found an inmate exhausts his administrative remedies when he completes all steps of a prison's grievance procedure, and § 1997e(a) does not require inmates to further appeal to South Carolina's Administrative Law Court. See, e.g., Ayre v. Currie, No. 05-3410, 2007 WL 3232177, at *7 n.5 (D.S.C. Oct. 31, 2007); Charles v. Ozmint, No. 05-2187, 2006 WL 1341267, at *4 (D.S.C. May 15, 2006). Exhaustion is a prerequisite to suit that must be completed prior to filing an action. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005).
Exhaustion is an affirmative defense and an inmate is not required to plead exhaustion in his complaint. Jones, 549 U.S. at 211-12; Anderson, 407 F.3d at 681. However, to survive a motion for summary judgment asserting that an inmate failed to exhaust, he is required to produce evidence in response to the motion that refutes the claim that he failed to exhaust. See Hill v. Haynes, 380 Fed.Appx. 268, 270 (4th Cir. 2010) (holding that “to withstand a motion for summary judgment, the non-moving party must produce competent evidence sufficient to reveal the existence of a genuine issue of material fact for trial” (citing Fed.R.Civ.P. 56(e)(2))); see also Celotex, 477 U.S. at 323-24 (stating that once the party seeking summary judgment demonstrates there is no genuine issue of material fact, the non-moving party, to survive the motion for summary judgment, must demonstrate specific, material facts exist that give rise to a genuine issue).
Here, Defendants have summarized the parameters of the SCDC grievance policy via the affidavit of Felecia McKie. [Doc. 72-4.] McKie notes that the inmate grievance procedure is set forth in SCDC Policy GA-01.12. [Id. at 2.] McKie explains:
The SCDC inmate grievance procedure is basically a three-step process. First, an inmate must attempt to resolve his/her issue through an Informal Resolution by submitting a Request to Staff Member Form (RTSM) or Automated Request to Staff Member (ARTSM) using the Kiosk to the appropriate supervisor/staff within eith working days of the incident. This attempt at an Informal Resolution is a prerequisite for filing most Step 1 Grievances . . .
After receiving a response to the RSTM or ARTSM, the inmate may then file a Step 1 Grievance by filling out an Inmate Grievance Form (Form 10-5). The Step 1 Grievance Form requires the inmate to include a copy of the answered RTSM that was submitted or a Kiosk reference number where he/she shall have filed an ARTSM.
After the Step 1 Grievance Form is turned in by the inmate, it is required to be picked up on a daily basis by designated staff. The Step 1 Grievance Form will then be routed to the institution's Inmate Grievance Coordinator (IGC). If the IGC determines that the grievance will be processed and returned to the inmate according to SCDC Policy GA-01.12 Inmate Grievance System guidelines, the IGC will note this on the Step 1 Grievance Form and return the Step l Grievance Form to the inmate with instructions on what, if anything, must be accomplished to cure the grievance of any deficiencies. If the grievance was untimely submitted, that cannot be cured.
If an inmate's Step l Grievance is returned as processed and returned, the inmate will have the opportunity to appeal the processed and returned grievance to the Branch Chief of the Inmate Grievance Branch within ten days of the grievance being returned to the inmate.
If the inmate is not satisfied with the response to his/her Step 1 Grievance, the inmate must appeal that response by submitting a Step 2 Grievance Form (Form 10-5A) to the IGC within five calendar days of receipt of the response to the Step 1 Grievance. The inmate's Step 2 Grievance Form is also placed in the institutional Grievance Box.
The response to the Step 2 Grievance, or appeal, is considered to be SCDC's final agency decision on the issue.[ Id. at 2-3 (paragraph numbering omitted).]
According to McKie, Plaintiff submitted several Step 1 Grievance Forms on August 12, 2021, concerning his claims that SCDC operates a “snitch cellphone network.” [Id. at 3.] Each of these grievances was processed and returned to Plaintiff for failing to submit an RTSM or ARTSM. [Id.] Nevertheless, Plaintiff never filed an appeal of the returned grievances and therefore did not exhaust all steps available to him. [Id.] McKie further notes that Plaintiff submitted additional Step 1 Grievance Forms on August 27, 2021, which were received by the IGC on September 1, 2021. [Id. at 4.] However, those “grievances were not and could not have been processed prior to August 31, 2021,” the date that Plaintiff filed his Complaint in this case. [Id.] McKie concludes:
Plaintiff did not receive a final agency decision prior to August 31, 2021, concerning the issues related to the alleged “snitch cellphone network” or the assault allegedly occurring on August 12, 2021. The Plaintiff did not take advantage of all of the steps and/or remedies available to him through the SCDC Inmate Grievance System prior to filing his Complaint on August 31, 2021.[Id.]
By way of response, Plaintiff simply asserts that the averments in McKie's affidavit are “not true because she stated that the Plaintiff failed to exhaust or exhaust prior to filing his Complaint.” [Doc. 81 at 1.] Plaintiff contends that prison officials have thwarted his attempts to complete the grievance process. [Id. at 2.] As a result, Plaintiff argues, he “filed this lawsuit as an emergency because as [he] alleged in his original Complaint to wait on the grievance process could result in irreparable injury.” [Id. at 3.] Plaintiff further contends that his grievance concerning an alleged lynching on August 12, 2021, at Grievance Number LCI-0465-21 became final on January 31, 2022. [Id.]
By way of a reply, Defendants argue that Plaintiff concedes he has not exhausted his administrative remedies as to all but one grievance. [Doc. 99 at 1-2.] As to that grievance-No. LCI-0465-21-Defendants argue as follows:
Obviously, January 31, 2022, is months after the filing of this lawsuit. Moreover, the record clearly reflects that the Plaintiff signed and dated the Step 1 of Grievance Number LCI-0465-21 on August 27, 2021, and it was received by the IGC on September 1, 2021. Obviously, that Step 1 Grievance was not submitted in time to be processed to finality before this suit was filed just days later on August 31, 2021. In fact, the Complaint was signed and dated by the Plaintiff on August 21,
2021, which was just nine days after the incident and actually six days before Grievance Number LCI-0465-21 was signed by him and submitted. In short, the Plaintiff has not demonstrated that he fully and properly exhausted his grievance rights before filing suit.[Id. at 3 (citations to the record omitted).]
The Court agrees. Even if Plaintiff had stated a cognizable claim for relief and named proper Defendants (which he has not), the action would nevertheless be subject to dismissal as Plaintiff failed to exhaust his administrative remedies prior to filing suit.
Defendants have shown through the affidavit of McKie that Plaintiff failed to exhaust his administrative remedies as to all but one claim asserted in the present action. Plaintiff concedes this point, although he claims his failure to exhaust is the fault of Defendants. Nevertheless, the failure to appeal a Step 1 Grievance Form that was unprocessed or otherwise processed and returned does not constitute the requisite proper exhaustion of administrative remedies. See, e.g., Livingston v. Padula, No. 8:08-cv-3064-HFF-BHH, 2009 WL 1872107, at *4 (D.S.C. June 29, 2009) (finding, under similar circumstances, that an inmate failed to exhaust his remedies and noting he was “free to file a Step 2 Grievance or otherwise appeal the determination not to process the initial grievance”). Plaintiff's argument that his failure to exhaust was the result of Defendants' actions is unavailing. The evidence in the record shows that most of his grievances were unprocessed because he failed to follow the proper procedure. Plaintiff's grievances were returned to him unprocessed, but he took no further action. “The fact that a grievance was unprocessed, without more, is insufficient to show that [Defendants] prevented [Plaintiff] from exhausting his administrative remedies.” Bryan v. S.C. Dep't of Corr., No. 4:08-cv-1590-TLW-TER, 2009 WL 702864, at *3 (D.S.C. Mar. 16, 2009). “A returned and unprocessed grievance does not necessarily render remedies ‘unavailable'” particularly where, as in this case, the inmate “was free to file a Step 2 Grievance or otherwise appeal the determination not to process the initial grievance.” Livingston, 2009 WL 1872107, at *4 (citation omitted).
Further, it is well settled that, under the PLRA, “prisoners must exhaust ‘such administrative remedies as are available' prior to filing suit in federal court challenging prison conditions.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (emphasis added). Here, the only claim that was purportedly exhausted-Grievance Number LCI-0465-21-was not final prior to Plaintiff's commencement of this action. As such, Plaintiff cannot show that he exhausted his remedies prior to filing suit.
In sum, Defendants have proffered evidence showing that Plaintiff failed to exhaust his administrative remedies prior to filing suit. On the other hand, there is no evidence that the administrative remedies were unavailable to Plaintiff. None of Plaintiff's claims were fully and properly exhausted prior to the filing of the Complaint as required. Accordingly, summary judgment should be granted for the Defendants on this basis as well.
Plaintiff's Motion for Temporary Restraining Order/Preliminary Injunction
Plaintiff has filed a motion for temporary restraining order and/or for a preliminary injunction along with a declaration and memorandum in support of his motion. [Docs. 77; 77-2; 77-4.] In his motion, Plaintiff makes allegations similar to those in his Complaint and he requests an order from the Court directing Defendants to stop involving him in the purported cell phone network and to protect Plaintiff from being lynched by other inmates by placing him in protective custody. [Doc. 77.] Defendants oppose the motion, arguing that “Plaintiff has not presented any evidence nor legal arguments to justify the extraordinary relief of a preliminary injunction.” [Doc. 90 at 3.]
Plaintiff's motion should be denied as moot as the undersigned has recommended that Defendants' motion for summary judgment be granted and the case be dismissed. Further, Plaintiff is not entitled to a preliminary injunction because he has not shown that he can satisfy the test articulated in Winter. Critically, Plaintiff cannot show he is likely to succeed on the merits, as he has offered nothing beyond his own conjecture to substantiate his allegations that Defendants are using him as bait to create a snitch network at the prison and directing gang members to hunt him down and lynch him. Moreover, the Court is unable to grant Plaintiff's requested relief because, as previously noted, there is no constitutional right for a state prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. Accordingly, Plaintiff has failed to make a clear showing that he is likely to succeed on the merits of his claims, and his motion should be denied.
Plaintiff's Motion for Declaratory Judgement
Plaintiff has filed a motion for declaratory judgment. [Doc. 80.] In his motion, Plaintiff seeks a judgment from this Court declaring that Defendants' “custom [and] practice” of denying protective custody for Plaintiff and forcing him to live in general population is “biased and discriminatory” and violates the Constitution. [ Id. at 1-2.]
As the undersigned recommends summary judgment for Defendants and dismissal of this action, Plaintiff's motion should be denied as moot. Additionally, this Court is unable to grant the relief sought in Plaintiff's motion. As discussed, Plaintiff has no constitutional right to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. Therefore, the motion should be denied.
Plaintiff's Motion for Joinder
Plaintiff has filed a motion for joinder in which he asks that a case pending in the state court be joined with the present action. [Doc. 169.] Specifically, Plaintiff asks to remove case number 2022-cp-40-02566 from the Richland County Court of Common Pleas and join it to the present action in this Court. [Id. at 1.] Plaintiff explains,
The purpose for this request is due to the fact that on 10-5-21 SLED were served an Amended Complaint. And on [that] same day on 10-5-21 hours after service of this Amended Complaint on SLED the Defendant SCDC recklessly transferred the Plaintiff into hostile territory, which is circumstantial evidence that SCDC takes its order from SLED.[Id.] Plaintiff contends that this “retaliatory transfer on 10-5-21 is the proximate cause of the 2022-cp-40-02566 pending lawsuit.” [Id.] Plaintiff further contends that, as a result of the retaliatory transfer[, he] was assaulted on 3-10-22.” [Id.]
As before, Plaintiff's motion should be denied as moot because this action as a whole is subject to dismissal for the reasons above. Additionally, Plaintiff's requested joinder is not permissible under the applicable rules of procedure. Significantly, the action pending in the state court apparently involves SCDC's transfer of Plaintiff to a different prison after he filed the present action. Plaintiff's claims arising from SCDC's conduct related to his transfer after the commencement of the present action cannot be properly joined with the claims asserted in this action as they are separate and independent claims. “To allow [Plaintiff] to essentially package many lawsuits into one complaint would undercut the PLRA's three-strikes provision and its filing fee requirement.” Muhmmad v. Stanford, No. 7:11-cv-00610, 2012 WL 112199, at *2 (W.D. Va. Jan. 12, 2012) (discussing joinder under Rules 18 and 20 and denying pro se inmate's motion for joinder). Accordingly, Plaintiff's motion should be denied.
Although Plaintiff does not identify any procedural rule under which he seeks to join the two actions, the undersigned concludes that Rules 18 and 20 of the Federal Rules of Civil Procedure are likely the only proper rules under which the Court may consider Plaintiff's request. “However, even where the conditions of [these rules] are met, ‘a court has discretion to deny a motion for joinder in order to prevent undue delay or other prejudice to the other parties.'” Crandell v. Hardy Cnty. Dev. Auth., No. 2:18-cv-87, 2020 WL 1151064, at *2 (N.D. W.Va. Mar. 9, 2020) (citation omitted). Further, even if the proper mechanism to join the two lawsuits together would be an amendment under Rule 15, the undersigned concludes any such amendment would be futile for the many reasons stated herein. See Grant-Davis v. Wilson, No. 2:19-cv-0392-DCN-TER, 2020 WL 6281521, at *3 (D.S.C. Oct. 27, 2020) (discussing whether joinder under Rule 18 or amendment under Rule 15 was the proper method for permitting the pro se prisoner to add claims). And, to the extent Plaintiff's motion should be construed as one for consolidation under Rule 42, the undersigned concludes that any such consolidation would be improper at this stage of these proceedings. See Naef v. Wells Fargo Home Mortg., No. 7:10-cv-163-FL, 2010 WL 5055990, at *1 (E.D. N.C. Dec. 3, 2010) (discussing whether consolidation of two cases was proper under Rules 18 and 20 or under Rule 42).
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment [Doc. 72] be GRANTED and that the Complaint be DISMISSED, that Plaintiff's motion for preliminary injunction and/or temporary restraining order [Doc. 77] be DENIED, that Plaintiff's motion for declaratory judgment [Doc. 80] be DENIED, and that Plaintiff's motion for joinder [Doc. 169] be DENIED.
IT IS SO RECOMMENDED.