Opinion
C. A. 6:23-01205-BHH-MHC
07-05-2023
Kyrkland Mansell, Plaintiff, v. J. H. Thompson, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by Plaintiff Kyrkland Mansell, a pretrial detainee. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order dated May 18, 2023, Plaintiff was given an opportunity to provide the necessary information and paperwork to bring his case into proper form for evaluation and possible service of process. Plaintiff was also notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 8. The time for Plaintiff to bring his case into proper form has passed, and Plaintiff has failed to bring his case into proper form and has not filed an amended complaint.
I. BACKGROUND
Plaintiff brings claims under 42 U.S.C. § 1983 (§ 1983). In response to the question the complaint form asking what federal constitutional or statutory right was violated by Defendants, Plaintiff wrote “False imprisonment, Excessive Force, deprive me of Equal Protection of the laws, Fifth Amendment.” ECF No.1 at 4. He asserts that on Grace Street in Greenville, South Carolina on September 3, 2019, a city official “pulled her gun upon [Plaintiff] for no reason[.]” Id.at 4-5. In his statement of his claim, Plaintiff contends that the gun was “put to [his] head with intent to do harm....[and he] was placed in jail for speaking [his] mind.” Id. at 5. Plaintiff asserts that his mental state has worsened “because of the Public official action to bring [him] harm for no reason” and he claims he suffers from emotional distress and paranoia. Id. at 6.
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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”).
III. DISCUSSION
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Failure to State Claim Against Defendant
Although Plaintiff lists Defendant's name in the caption of his Complaint, his pleadings fail to provide any specific facts to support a claim that this Defendant (who was the Greenville chief of police and does not appear to have been the arresting officer about whom Plaintiff alleges claims) violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”).
Plaintiff asserts claims about an unnamed woman but has alleged no facts to indicate that the Defendant named in this action subjected Plaintiff to excessive force or false arrest. Although Plaintiff generally alleges violations of his Equal Protection and Fifth Amendment rights, he has not alleged any facts to state a claim.
To establish an equal protection violation, Plaintiff first must demonstrate that he has been treated differently from others with whom he is similarly situated, and that the unequal treatment was the result of intentional or purposeful discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If that initial showing has been made, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id. Here, Plaintiff has not alleged any facts to state an equal protection violation.
Additionally, to the extent that Plaintiff may be attempting to bring a claim against Defendant based on a theory of supervisory liability, such a claim is subject to summary dismissal. To state a § 1983 claim for supervisory liability, a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Here, Plaintiff has not alleged any facts to establish supervisory liability as to Defendant.
B. Statute of Limitations
It also appears that Plaintiff's claims are barred by the applicable statute of limitations. For a § 1983 claim arising in South Carolina, the statute of limitations is three years. See Owens v. Okure, 488 U.S. 235, 240-241 (1989) (“Because § 1983 claims are best characterized as personal injury actions, ... a State's personal injury statute of limitations should be applied to all § 1983 claims.”); Owens v. Baltimore City State's Attorney Office, 767 F.3d 379, 388 (4th Cir. 2014) (“[T]o determine the timely filing of a § 1983 claim, courts borrow the statute of limitations from the most analogous state-law cause of action. For § 1983 suits, that cause of action is a personalinjury suit.”) (internal citations omitted); Brannon v. Blanton, No. 9:15-2434-CMC, 2016 WL 4232886, at *2 (D.S.C. Aug. 11, 2016) (“[T]he statute of limitations for § 1983 claims arising in South Carolina is three years, regardless of the underlying allegations of the § 1983 claim.”).
A § 1983 cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995); see also Wallace v. Kato, 549 U.S. 384 (2007) (providing that the accrual date of a § 1983 cause of action is a question of federal law). The statute of limitations for an arrestee's § 1983 false arrest or false imprisonment claim begins to run at the time of arrest. Wallace v. Kato, 549 U.S. at 389 (“[T]he statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.”). For an excessive force claim, the cause of action accrues on the date the alleged excessive force occurred. See Pitts v. South Carolina, No. 8:20-cv-00092-JFA-KFM, 2020 WL 4506830, at *4 (D.S.C. Apr. 15, 2020), report and recommendation adopted, 2020 WL 4506681 (D.S.C. Aug. 5, 2020) (explaining the three-year statute of limitations applies to excessive force claims and that a cause of action accrues on the date the alleged excessive force occurred). Here, Plaintiff was detained pursuant to legal process and the alleged use of excessive force occurred on September 3, 2019. However, Plaintiff did not file this action until more than three years later.
While the statute of limitations is an affirmative defense that is subject to waiver if not timely raised in a responsive pleading (see Fed.R.Civ.P. 8(c)), the court is authorized to anticipate clearly apparent affirmative defenses available to defendants in determining whether, under § 1915, process should be issued. Todd v. Baskerville, 712 F.2d at 74; see also Duncan v. West Virginia, 597 F.Supp. 1195, 1196 (S.D. W.Va. 1984) (“Although some of the matters discussed constitute defenses, where the complaint on its face raises obvious and complete affirmative defenses, the Court may consider these defenses in ruling under 28 U.S.C. § 1915(d) [that a] complaint [is] frivolous.”) (citation omitted).
C. Failure to Bring Case into Proper Form
Additionally, Plaintiff has failed to bring this case into proper form as outlined in the Court's Order by completing a summons form that lists Defendant. See ECF No. 8. Plaintiff was warned that failure to provide the necessary item within the timetable set forth in the Order would subject the case to dismissal. See id.
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide the required item to bring his case into proper form. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action, without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
Plaintiff's attention is directed to the important notice on the following page.
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
Post Office Box 835
Charleston, South Carolina 29402
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).