Opinion
C/A No. 0:18-996-HMH-PJG
05-01-2018
Frank Stephon Johnson, Plaintiff, v. Lt. Lagtta; Lt. Lippett; Lt. Sigh; Director Myers; Capt. Higgins; Capt. Moye; Capt. Bufford; Lt. Hayes; Lt. William; Lt. Seward; Lt. Mccoullgh, Defendants.
REPORT AND RECOMMENDATION
The plaintiff, Frank Stephon Johnson, a self-represented state pretrial detainee, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Complaint in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without issuance and service of process.
I. Procedural Background
Plaintiff, an inmate at the Alvin S. Glenn Detention Center, indicates that on January 12, 2018, he slipped and fell walking out of the shower on a spot that chronically leaks sewage because of faulty plumbing. (Compl., ECF No. 1 at 7-8.) Plaintiff indicates he injured his head and right side in the fall. (Id. at 7.) The officer on duty called for medical staff to assist Plaintiff when he fell. (Id.) The medical staff took Plaintiff to the medical unit in a wheelchair, x-rayed his elbow, and gave him pain medication. (Id.) The medical staff told Plaintiff that nothing was wrong with him "yet," and forced him to walk back to his cell. (Id.) While walking back to his cell, detention center officers Shapard and Roach made light of his injury, indicating that they thought Plaintiff was malingering. (Id.)
The next day, Plaintiff told the commanding officer that he was still in pain. (Id. at 8.) Medical staff brought pain medication to Plaintiff's cell, and there, Plaintiff showed a medical staff member the severe swelling on his right side. (Id.) That night, Plaintiff was taken by wheelchair to see a nurse, who indicated that "there is something wrong" with Plaintiff, and sent him back to his cell with a hot pad. (Id.) On January 15, Plaintiff had an appointment to see Dr. Randolph, but Plaintiff could not get out of bed due to the severe pain and swelling, and he had involuntarily urinated on himself the night before. (Id. at 9.) Dr. Randolph prescribed pain medication to Plaintiff, ordered x-rays, and sent him to the detention center's medical unit. (Id.) The next day, the nurse failed to bring Plaintiff a heating pad. (Id.)
Plaintiff alleges he has received poor medical attention, including the defendants' failure to send him to a hospital to treat his injuries. Plaintiff indicates he performs therapy on himself to try and rebuild his strength on his right side. (Id. at 10.) Plaintiff indicates he still has problems with his back and right hip, and he continues to have headaches on the right side of his forehead. (Id.) He seeks damages pursuant to 42 U.S.C. § 1983 for "cruel and unusual punishment" and "deprivation," and he alleges the defendants have been negligent. (Id. at 6, 15.)
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), including 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
A legal action under 42 U.S.C. § 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). To state a claim under § 1983, a plaintiff must allege: (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). Plaintiff claims the defendants violated the Eighth Amendment's prohibition on cruel and unusual punishment, and he raises a state tort law claim of negligence.
However, none of the individuals named as defendants in the caption of Plaintiff's complaint appear in the substantive allegations raised by him. That is, Plaintiff fails to provide any substantive allegations against the named defendants. Therefore, Plaintiff fails to allege any facts that would plausibly show that the named defendants were personally involved in creating the conditions that led to his injuries, or that they were responsible for failing to provide Plaintiff with the medical treatment he claims he should have received. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) ("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. The doctrine of respondeat superior has no application under this section.' ") (quoting Vinnedge v. Gibbs, 550 F.2d, 928 (4th Cir. 1977)). Similarly, Plaintiff fails provide any allegations that could plausibly show the named defendants were negligent towards Plaintiff and caused him injury. Consequently, Plaintiff's Complaint should be summarily dismissed for Plaintiff's failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915(b)(1).
To establish a cause of action in negligence in South Carolina, the plaintiff must prove: (1) duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. Bishop v. S.C. Dep't of Mental Health, 502 S.E.2d 78 (S.C. 1998) (citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292 (S.C. 1996)).
III. Conclusion
For the foregoing reasons, it is recommended that the Complaint be dismissed without prejudice and without issuance and service of process. May 1, 2018
Columbia, South Carolina
Plaintiff may amend his Complaint pursuant to the requirements of Federal Rule of Civil Procedure 15. Plaintiff's attention is drawn to this rule as he may be able to cure the deficiencies noted above. See Grady v. White, No. 16-7722, 2017 WL 1437235 (4th Cir. Apr. 24, 2017) (dismissing without remanding to the district court because district court previously afforded the plaintiff the chance to amend his complaint).
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).