Opinion
C. A. 4:24-3019-DCC-TER
07-25-2024
Jeremy Clay Orr, #610735, Plaintiff, v. Richland County, Town of Irmo, Schylur Wells, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a pretrial detainee, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned 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).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
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. 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,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). 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 plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
On June 28, 2024, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 11). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 14); however, some deficiencies persist, and the action is subject to partial summary dismissal.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges his claims are under the Fourth, Fifth, Sixth, and Eighth Amendments. (ECF No. 14 at 4).
Plaintiff sues the Town of Irmo as a Defendant; Defendant Wells appears to be an employee of Irmo. Plaintiff's Amended Complaint does not allege an unconstitutional policy, practice, or custom by Defendant Town of Irmo. A municipality or other local government entity may only be held liable under 42 U.S.C. § 1983 “where the constitutionally offensive actions of [ ] employees are taken in furtherance of some municipal ‘policy or custom.'” See Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). Plaintiff fails to identify any governmental policy or custom that caused his constitutional rights to be allegedly violated. Evidence of an incident is insufficient to give rise to municipal liability under § 1983. S. Holdings, Inc. v. Horry Cnty., S.C., No. 4:02-cv-1859-RBH, 2007 WL 896111, at *2 (D.S.C. Mar. 21, 2007). At most, Plaintiff attributes to the city police department here, in a conclusory fashion, the alleged wrongful acts of one of its employees which does not state a claim as to the Town of Irmo. See Hensley v. Horry Cnty. Police Dep't, No. 4:19-cv-602-RBH-KDW, 2019 WL 9667697, at *3 (D.S.C. Dec. 17, 2019), report and recommendation adopted, 2020 WL 2537452 (D.S.C. May 19, 2020). Defendant Town of Irmo is subject to summary dismissal.
Defendant Richland County is subject to summary dismissal. “Count[ies] ... [are] protected by the Eleventh Amendment, which bars suits by citizens against non-consenting states brought either in state or federal court.” Blakely v. Mayor of Greenville Cty., No. 6:12-cv-02587-MGL, 2012 WL 6675095, at *2 (D.S.C. Sept. 25, 2012), report and recommendation adopted, 2012 WL 6675093 (D.S.C. Dec. 21, 2012)(citing Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890)).
Defendant individual Wells remains. As to Wells, Plaintiff alleges Wells approached Plaintiff years ago to do some informant, controlled buys. Plaintiff alleges he was afraid and eventually did not do the buys for Wells. Plaintiff alleges Wells then held a grudge. (ECF No. 14 at 8-9). “Wells...has violated [m]y rights, warrantless searches of property and seized my cellphones resulting in me missing court dates.” (ECF No. 14 at 9). Plaintiff alleges Wells and another detective “had me on either side” at an arrest at the Dunkin Donuts on September 5, 2023; by the time Plaintiff realized they were police, Plaintiff states “the police had already assaulted me.” (ECF No. 14 at 11). Plaintiff alleges he was taken to the hospital for injuries to his knee and leg with blood and bruising. (ECF No. 14 at 11-12). Public records show two of Plaintiff's nine pending charges are from September 2023 and the arresting officer listed is Defendant Wells.
Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendant Wells, and this same day service and issuance of summons as to only this Defendant has been authorized by separate order.
Plaintiff has many other allegations in his Amended Complaint; however, none of them are connected to an individual defendant and Plaintiff was already warned about the requirements of Fed. R. Civ. Proc. R. 8. To assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007).
Plaintiff has been previously notified of deficiencies in the original complaint, has been given an opportunity to amend his complaint, and has availed himself of the opportunity to amend but deficiencies remain regarding some Defendants.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Town of Irmo and Richland County be summarily dismissed with prejudiceand without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendant Wells.
As noted above, Plaintiff has been given an opportunity to amend and has filed an Amended Complaint. It is recommended that Defendants Town of Irmo and Richland County be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he 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 of Court
United States District Court
Post Office Box 2317
Florence, South Carolina 29601
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).