Opinion
C. A. 4:24-1360-DCC-TER
04-19-2024
Jeremy Clay Orr, #610735, Plaintiff, v. Richland County Sheriff's Office, Director Harvey, Captain Sligh, Officer Garner, 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); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
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 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); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's 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 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. 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).
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 may be 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
Plaintiff's action is subject to dismissal for failure to state a claim upon which relief can be granted. On March 27, 2024, Plaintiff was ordered by the Court to file an Amended Complaint because deficiencies in the original Complaint would result in a summary dismissal if not remedied by Plaintiff. (ECF No. 6). The court expressly identified the deficiencies and directed Plaintiff with case law regarding the specific deficiencies. (ECF No. 6 at 1-3). Plaintiff filed an Amended Complaint and changed some of the named Defendants, but deficiencies remain.
Plaintiff alleges this is a § 1983 action for violation of his Eighth Amendment rights. (ECF No. 9 at 4). Plaintiff alleges generally “Garner assaulted me with neglect” and “Sligh neglected his duties showing discrimination.” (ECF No. 9 at 4). Plaintiff alleges the events happened March 20, 2021, through March 23, 2021. (ECF No. 9 at 5). In other pending actions, Plaintiff also alleges events happened these dates, but in those actions the allegations are general and conclusory and the injury in both actions are black eyes. No. 4:24-cv-1981-DCC-TER, No. 4:24-cv-1426-DCC-TER. Here, Plaintiff alleges Defendant Garner wrapped his arm around Plaintiff's neck in 2021, choking him to unconsciousness, and then Garner placed him in a confinement cell with no food or water for three days. (ECF No. 9 at 5-6). Plaintiff alleges on the second day, Garner punched him in the face. Injuries alleged are a busted lip and blacking out from no water or food.
Plaintiff names Richland County Sheriff's Office as a Defendant. A Sheriff's Office is not a person amenable to suit. In a § 1983 civil rights action, a plaintiff must sufficiently allege injury through “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a “person” acting under color of state law. 42 U.S.C. § 1983. A defendant in a § 1983 action must qualify as a “person.” Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000)(unpublished opinion).
Plaintiff only sues Defendants in their official capacity. Plaintiff has been notified repeatedly of this type of deficiency which results in immunity for defendants from monetary damages. The following was included in the prior order. To the extent Plaintiff seeks monetary damages, Plaintiff's Amended Complaint is subject to summary dismissal based on Eleventh Amendment immunity because he sues Detention Center employees all in their official capacities only. A county detention center is under the control of the county sheriff's office, and such is considered a state agency. See Williams v. Dorchester Cty. Det. Ctr., 987 F.Supp.2d 690, 694 (D.S.C. 2013); Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988). Thus, defendants would be state officers, not county employees, and would be entitled to Eleventh Amendment immunity when sued in official capacity only in federal court. See Cash v. Thomas, No. 6:12-cv-1278-MGL, 2013 WL 3804375, at *7 (D.S.C. July 19, 2013). 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.” 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). This immunity extends to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. Of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Because all Defendants were agents or employees of an arm of the State of South Carolina when acting in their official capacities, they are not a “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.”). 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). Defendants, when sued in their official capacities for liability for monetary damages, are immune from suit under the Eleventh Amendment. The same immunity would apply to Richland County was a party/if Defendant Richland County Sheriff's Office were not a building.
Plaintiff requests monetary damages and “a victim § 16-3-1910 permanent restraining order.” (ECF No. 9 at 6). Plaintiff does not plausibly plead a request for injunctive relief which could be granted. The state statute cited is the state procedure in state circuit or family court for a victim restraining order. The statute requires that the respondent be the person convicted of a criminal offense for which the victim was the subject of the crime or a witness. One requirement of the state statute is that the victim state when and where the conviction took place. S.C. Code Ann. § 16-31910. Plaintiff alleges the event supporting his federal claim happened in 2021; even under a liberal construction, the court does not create Plaintiff's arguments for him, and Plaintiff does not state any facts of what he wants the court to enjoin or stop to even perform a further analysis of such request for relief. 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 statute cited by Plaintiff is wholly inapplicable here, this federal court does not have authority to enter a “victim § 16-3-1910 permanent restraining order” into the state courts, and Plaintiff has not stated a claim upon which relief can be granted.
Plaintiff has failed to state a claim upon which relief can be granted against the named Defendants in the Amended Complaint and this action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss this action with prejudice under § 1915(e) and § 1915A and without issuance and service of process.
It is recommended that this action be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).