Opinion
C/A No. 5:16-cv-03279-JMC-KDW
11-07-2016
Gregory Mickles, Jr., Plaintiff, v. Vernitia Dozier; Harold Young; Kerry Murphy, and Ms. Bradley James, Defendants.
REPORT AND RECOMMENDATION
This is a civil action filed pro se by a local detention center detainee. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). I. Factual Background
Gregory Mickles, Jr. ("Plaintiff") is currently detained at the Orangeburg County Detention Center ("OCDC"). In the Complaint filed in this case, Plaintiff complains about black mold and excessive dust at the OCDC and asserts that he has experienced burning lungs and breathing problems as a result of the conditions of his confinement. Compl. 4-6, ECF No. 1. He names four persons described as Orangeburg County employees as Defendants and indicates he is suing them in their "official capacity." Id. at 2-3. As relief, Plaintiff seeks "[a]ny and all monies available to [him] for the pain and suffering and mental anguish of having to continuously endure while nothing was being done to alleviate the problem(s)." Id. at 6. II. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, 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. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Even under this less stringent standard, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B). III. Discussion
The Complaint under review fails to state a plausible claim for relief against any of the four named Defendants because he does not allege that any of the four Defendants had any personal involvement in the complained-of OCDC living conditions. The "Statement of Claim" section of the complaint form Plaintiff used specifically directed him to "[d]escribe how each defendant was personally involved in the alleged wrongful action . . . ," and told him to provide facts underlying his claim such as "[w]ho did what . . . ." ECF No. 1 at 5. Nonetheless, Plaintiff does not reference any of the Defendants (or anyone) by name in his "Statement of Claim," nor does he include anything that states what, if anything, the named Defendants have to do with the conditions of his confinement.
To state a plausible § 1983 claim against any particular public official, a "causal connection" or "affirmative link" must exist between the conduct of which the plaintiff complains and the official sued. See Kentucky v. Graham, 473 U.S. 159 (1985); Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir. 2012). Also, the lack of any substantive allegations of wrongdoing by a defendant in a complaint requires dismissal of the complaint as to that defendant. 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. 3:14CV372-HEH, 2014 WL 4072212 (E.D. Va. Aug. 14, 2014) (complaint subject to summary dismissal where no factual allegations against named defendants within the body of the pleading); see also Krych v. Hvass, 83 F. App'x 854, 855 (8th Cir. 2003); Black v. Lane, 22 F.3d 1395, 1401 n.8 (7th Cir. 1994); Walker v. Hodge, 4 F.3d 991, * 2 n. 2 (5th Cir. 1993); Banks v. Scott, 3:13CV363, 2014 WL 5430987, at *2 (E.D. Va. Oct. 24, 2014). In absence of substantive allegations of wrongdoing against the named Defendants, there is nothing from which this court can liberally construe any type of plausible cause of action arising from the Complaint against any of them. See Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996) (statute allowing dismissal of in forma pauperis claims encompasses complaints that are either legally or factually baseless); Weller v. Dep't of Social Servs., 901 F.2d at 389 n.2 (dismissal proper where there were no allegations to support claim).
Furthermore, even if Plaintiff had included substantive factual allegations against the Defendants, his Complaint would be subject to summary dismissal based on Eleventh Amendment immunity because he sued them only in their official capacities. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). A state cannot, without its consent, be sued in a district court of the United States by one of its own citizens upon the claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case. S.C. Code Ann. § 15-78-20(e). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). In South Carolina a county is considered an arm of the state, S.C. Code Ann. § 4-1-10, and arms of the state are entitled to Eleventh Amendment immunity. See Pennington v. Kershaw Cnty., S.C., No. 3:12-1509-JFA-SVH, 2013 WL 2423120, at *4 (D.S.C. June 4, 2013) (citing S.C. Code Ann. § 4-1-10 and applying the Eleventh Amendment to a county as "a political subdivision of the State"); Cone v. Nettles, 417 S.E.2d 523, 525 (S.C. 1992) (employees of a county Sheriff are state officials); see also Jenkins v. Palmer, No. 5:15-cv-3398-HMH-KDW, 2016 WL 3101969, at **7-8 (May 6, 2016), report and recommendation adopted sub nom. Jenkins v. Florence Cnty. Det. Ctr, 2016 WL 3079043 (D.S.C. May 31, 2016) (granting Eleventh Amendment immunity to a county employee in his official capacity). Because a county employee in his or her official capacity is deemed to be the county itself, see Hafer v. Melo, 502 U.S. 21, 27 (1991); Weller v. Dep't of Soc. Servs., 901 F.2d at 398, this federal court is precluded from considering an official capacity claim against such an employee.
Finally, it is well settled that only "persons" may act under color of state law, and, therefore, a defendant in a § 1983 action must qualify as a "person." See generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (3d ed. 2014). Here, no plausible § 1983 claim is stated because all of the Defendants were agents or employees of an arm of the State of South Carolina when acting in their official capacities and, therefore, they are not "persons" within the meaning of 42 U.S.C. § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a state nor its officials acting in their official capacities are 'persons' under § 1983."). IV. Recommendation
Accordingly, it is recommended that the district court dismiss the Complaint in this case without prejudice. See Brown v. Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B); 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).
IT IS SO RECOMMENDED. November 7, 2016
Florence, South Carolina
/s/
Kaymani D. West
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
Post Office Box 2317
Florence, South Carolina 29503
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).