Miller v. Visintainer

Full title: John M. Miller, Plaintiff, v. Leon Visintainer; P.I. Mgr./M.C.I, Defendant

Court: United States District Court, D. South Carolina

Date published: Jul 13, 2007

C/A No. 6:07-1736-MBS-WMC (D.S.C. Jul. 13, 2007)

Opinion

C/A No. 6:07-1736-MBS-WMC.

July 13, 2007

Report and Recommendation

WILLIAM CATOE, Magistrate Judge

The Plaintiff, John M. Miller (Plaintiff), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983.¹ Plaintiff is an inmate at Kershaw Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC), and files this action in forma pauperis under 28 U.S.C. § 1915. The Complaint names Leon Visintainer, "P.I." Manager at McCormick Correctional Institution (MCI), as the sole Defendant.² Plaintiff claims wages earned while at in the "P.I." program at MCI have been withheld. Plaintiff seeks monetary damages and claims to have exhausted his administrative remedies in compliance with 42 U.S.C. § 1997e(a). The Complaint should be dismissed for failure to state a claim upon which relief may be granted.

1 Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court.

2 The Complaint does not indicate whether Defendant Visintainer is an employee of the South Carolina Department of Corrections (SCDC). However, Title 28 U.S.C. § 1915A (a) provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity."

Pro Se and In Forma Pauperis 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 28 U.S.C. § 1915; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996). This review has been conducted 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 (4^th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4^th Cir. 1983).

The Complaint herein 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. To protect against possible abuses of this privilege, the statute allows a district 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." § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5^th Cir. 1995).

This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). Even under this less stringent standard, however, the pro se 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 the 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 (10^th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7^th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, (4th Cir. 1990).

Background

Plaintiff indicates that, on February 26, 1999, he was terminated from the MCI work program and received a disciplinary charge for violation of the "P.I." attendance policy. Plaintiff claims to have shown that he did not violate any attendance policy and was, thus, wrongfully terminated from the program. Plaintiff complains that MCI failed to reinstate wages that were apparently removed (or never paid) as a result of the disciplinary action.

Discussion

The Complaint is filed 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 legal 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). 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).

The Complaint in the instant case makes no factual allegations against the only named Defendant. The Complaint discusses Plaintiff's alleged wrongful termination from the "P.I." program and MCI's failure to reinstate Plaintiff's wages, however, no personal allegations against Defendant Visintainer are included. Although the Court must liberally construe the pro se Complaint, Plaintiff must do more than make mere conclusory statements to state a claim. Brown v. Zavaras, 63 F.3d 967, 972 (10^th Cir. 1995); Adams v. Rice, 40 F.3d 72, 74 (4^th Cir. 1994); White v. White, 886 F.2d 721, 723 (4^th Cir. 1989) (complaint dismissed because "failed to contain any factual allegations tending to support his bare assertion"). While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, he must allege facts that support a claim for relief. Bass v. E.I. Dupont de Nemours Co., 324 F.3d 761, 765 (4^th Cir. 2003). The Complaint must "contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiff." Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981). This Court is not required to develop tangential claims from scant assertions in the Complaint. See Beaudett v. City of Hampton, 775 F.2d 1274 (4^th Cir. 1985).

In any event, Plaintiff fails to raise a cognizable claim regarding the alleged non-payment of (or failure to reinstate) wages for his work in the MCI "P.I." program. If construed as a breach of contract claim, Plaintiff's action must fail. See Holton v. Fields, 638 F. Supp. 1319 (S.D. W. Va. 1986) (nonpayment of wages amounted, at best, to only an alleged breach of contract, which was not actionable under § 1983). Likewise, if characterized as a claim of unconstitutional deprivation of property, the claim also warrants dismissal. See Borror v. White, 377 F.Supp. 181, 183 (W.D. Va. 1974) ("[T]here exists no [federal] constitutional right on the part of a state prisoner to be paid for his labor."). See also Anderson v. Morgan, 898 F.2d 144 (Table) (4th Cir. 1990) (nonpayment of wages under prison work-release programs not actionable under § 1983); Manning v. Lockhart, 623 F.2d 536, 538 (8^th Cir. 1980) (concluding inmate's claim regarding non-payment of wages warrants no relief under 42 U.S.C. § 1983). Thus, while Plaintiff's Complaint may raise issues cognizable in state court, the allegations are not actionable under § 1983.³ As the Complaint fails to state a claim upon which relief may be granted under § 1983, it should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

3 It should also be noted that the Court has no diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332. According to the Plaintiff's information, he and the Defendant are both residents of South Carolina. In absence of diversity of citizenship, the amount in controversy is irrelevant.

Recommendation

Accordingly, it is recommended that the District Court dismiss the Complaint in the above-captioned case without prejudice and without issuance of service of process. See Todd v. Baskerville 712 F.2d at 74, Denton v. Hernandez, 504 U.S. at 31, Neitzke v. Williams, 490 U.S. at 324-25. Plaintiff's attention is directed to the important notice on the next page.