Opinion
No. 5:17-CT-3156-D
09-06-2018
Teresa Halsey Pollock, Plaintiff, v. Kenneth Roster, et al., Defendants.
Memorandum & Recommendation
Plaintiff Teresa Halsey Pollock brings a claim under 42 U.S.C. § 1983 alleging that various staff members of the North Carolina Correctional Institute for Women ("NCCIW") violated her rights by negligently failing to repair a shower tile. Compl., D.E. 1. She seeks $15,000 in monetary damages and for NCCIW to repair the condition that caused her injury. The district court referred this matter to the undersigned magistrate judge for a frivolity review under 28 U.S.C. § 1915A. See 28 U.S.C. § 636(b)(1). After reviewing the Complaint, the undersigned recommends that that the district court dismiss Pollock's claims.
The Prison Litigation Reform Act of 1996 (PLRA) requires courts to review actions filed by prisoners against governmental entities or officials. 28 U.S.C. § 1915A(a). The purpose of this review is to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must examine the pleadings, identify cognizable claims, and dismiss any portion of the complaint that is, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from this relief. Id. § 1915A(b).
For a plaintiff to avoid dismissal for failing to state a claim upon which relief may be granted, the plaintiff's "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The Supreme Court has explained that "[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." Id. Pollock's status as a pro se party relaxes, but does not eliminate, the requirement that her complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it "cannot ignore a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp. 2d 766, 776 (E.D.N.C. 2011).
Pollock's § 1983 claim arises out of an April 2017 incident where she cut her foot on a broken shower tile. Compl. at 5. The Complaint alleges that before her injury Pollock had repeatedly notified prison officials about the broken tile. Id. Pollock claims that her injury resulted from the defendants' negligent conduct in failing to repair the tile. Id. ("As a result of negligence and [sic] my right as a [sic] inmate to safety and sanitation was violated. I was physically injured on 4-20-17 as a result of their negligence of not fixing this broke rusted out sharp tile.").
Unfortunately for Pollock, negligent conduct, in general, is not actionable under 42 U.S.C. § 1983; see Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Pink v. Lester, 52 F.3d 73 (4th Cir. 1995) ("The district court properly held that Daniels bars an action under § 1983 for negligent conduct[.]"). Therefore, the district court should dismiss her claim without prejudice.
The Clerk of Court serve a copy of this Memorandum and Recommendation on plaintiff. Plaintiff shall have until 14 days after service of the Memorandum and Recommendation on her to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If plaintiff does not file written objections to the Memorandum and Recommendation by the foregoing deadline, she will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar her from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: September 6, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge