Opinion
C/A 8:21-cv-01181-DCC-JDA
09-02-2021
Johnell Richardson, Plaintiff, v. Lt. D. Burzinski, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
Johnell Richardson (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, purportedly for violations of his constitutional rights. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the Perry Correctional Institution (“Perry”). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal for the reasons below.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a “Notice of Intent” to file a lawsuit, which the Court construed as a complaint pursuant to 42 U.S.C. § 1983. [Doc. 1.] By Order dated April 26, 2021, the undersigned directed Plaintiff to file the necessary information and paperwork to bring the case into proper form for possible service, including payment of the filing fee, a properly completed complaint on the standard court form, and service documents. [Doc. 5.] Because Plaintiff did not respond to that Order, the case was dismissed for failing to prosecute on June 1, 2021. [Doc. 9.]
Plaintiff's initial pleading was filed on April 14, 2021, because a prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988); [Doc. 1-1 at 1 (envelope marked as received by the Perry mailroom on April 14, 2021)].
On June 11, 2021, Plaintiff filed a notice of appeal [Doc. 13], and on June 21, 2021, he filed a motion to set aside the judgment [Doc. 18]. The Fourth Circuit Court of Appeals dismissed Plaintiff's appeal on August 20, 2021, for failure to prosecute. [Doc. 35.] However, by Order dated June 29, 2021, the Honorable Donald C. Coggins, Jr., re-opened the case and recommitted the matter to the undersigned for further review. [Doc. 19.] Additionally, by Order dated June 29, 2021, the undersigned again directed Plaintiff to bring the case into proper form by filing the necessary information and paperwork, including a properly completed complaint on the standard court form. [Doc. 23.]
On August 2, 2021, the Court received Plaintiff's filings in response to that Order, including a completed Complaint form. [Doc. 27.] The Court construes both Plaintiff's original filing [Doc. 1] and his completed complaint form [Doc. 27] together as the Complaint in this matter.
Plaintiff also filed an application to proceed without prepaying fees or costs (Form AO 240), which is construed as a motion for leave to proceed in forma pauperis (“IFP motion”). [Doc. 28.] However, Plaintiff did not file the required financial certificate. Accordingly, the undersigned issued another Order dated August 6, 2021, directing Plaintiff to file a financial certificate so that the Court could rule on his IFP motion. [Doc. 32.] Plaintiff was warned as follows:
If Plaintiff does not bring this case into proper form within the time permitted by this Order, this case may be dismissed for failure to prosecute and failure to comply with an order of this Court under Rule 41 of the Federal Rules of Civil Procedure.[Id. at 1 (emphasis omitted).] Plaintiff has not responded to the Court's Order and has failed to file a financial certificate.
That same day, the undersigned entered an Order regarding amendment to notify Plaintiff that this action was subject to summary dismissal for reasons identified by the Court in its Order. [Doc. 33.] The Court noted, however, that Plaintiff may be able to cure the pleading deficiencies of his Complaint and granted Plaintiff twenty-one days to file an amended complaint. [Id. at 6.] Further, Plaintiff was specifically warned as follows:
If Plaintiff fails to file an amended complaint that corrects those deficiencies [identified in the Court's Order], this action will be recommended for summary dismissal . . .[Id.] Nevertheless, Plaintiff has not filed an amended complaint, and he has failed to cure the deficiencies identified by the Court in its Order regarding amendment.
Factual Allegations
In the Complaint, Plaintiff contends Defendant violated his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment, to due process, and to equal protection. [Doc. 27 at 4.] According to Plaintiff, the events giving rise to his claims occurred at Perry beginning on January 22, 2021, and have continued until the present date. [Id. at 5.] As to the facts underlying his claims, Plaintiff alleges verbatim, “Lt. D. Burzinski made sexual advances at me then [penalized] me for reporting it.” [Id.] For his injuries, Plaintiff alleges that “[a]ll injuries related to this incident are mental.” [Id. at 6.] For his relief, Plaintiff asserts that he wants a “sep[a]ration from Lt. D. Burzinski.” [Id.] Plaintiff makes no other allegations concerning his claims.
STANDARD OF REVIEW
Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
Rule 41 Dismissal
As noted, by Orders dated April 26, June 29, and August 6, 2021, the undersigned directed Plaintiff to file the necessary information and paperwork to bring the case into proper form for possible service. [Docs. 5; 23; 32.] In each Order, Plaintiff was directed to file a financial certificate because he has filed an IFP motion. Under General Order In Re: Procedures in Civil Actions Filed by Prisoner Pro Se Litigants, No. 3:07-mc-5014-JFA, Doc. 1 at 2 (D.S.C. Sept. 18, 2007), an IFP motion “must be accompanied by a Financial Certificate for all prisoners.” Further, that Order provides, “[i]f the prisoner does not comply with [an] order to bring the case into proper form, the case may be forwarded to the assigned District Judge . . . for an order of dismissal without prejudice.” Id. at 3.
Here, Plaintiff has not filed a financial certificate, despite being instructed to do so in the Court's three Orders noted above. Further, Plaintiff has not responded to the Court's most recent Order, dated August 6, 2021, and the time for response has lapsed. Plaintiff was warned numerous times that this action may be subject to dismissal for failure to respond to the Court's Orders and for failure to bring the case into proper form. [Docs. 5 at 1; 19 (“The Court notes that this action is not yet in proper form and directs Plaintiff to be mindful of court-directed deadlines going forward.”); 23 at 1; 32 at 1; 33 at 6.]
Because Plaintiff has not responded to the Court's Order and has not filed a Financial Certificate, he has failed to prosecute this case and has failed to comply with multiple Orders of this Court. Because Plaintiff has already ignored this Court's prior Orders and deadlines, sanctions less drastic than dismissal would not be effective. Accordingly, the case should be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962).
Dismissal for Failure to State a Claim
As an additional basis for dismissal, the undersigned recommends that this action be dismissed for failure to state a claim.
Plaintiff filed this action 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 civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). 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).
Here, the Complaint is subject to summary dismissal because Plaintiff has failed to state a claim for relief under § 1983 that is plausible. As noted, a plaintiff must do more than make conclusory statements to state a claim for relief that is plausible. See Iqbal, 556 U.S. at 677-78; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
Plaintiff fails to provide a clear factual basis for his claim in the Complaint, and his cursory allegation that Defendant made sexual advances and penalized him for reporting it, without more, fails to state a claim that is plausible. Indeed, although Plaintiff contends that Defendant violated his rights under the Eighth and Fourteenth Amendment and that he is asserting causes of action for cruel and unusual punishment, due process violations, and equal protection violations, he fails to provide facts to support such claims. Therefore, because Plaintiff's Complaint fails to state the factual basis for holding Defendant liable, the Court is unable to determine whether any of the causes of action listed in the Complaint are plausible against Defendant. See Addahoumi v. Pastides, No. 3:16-cv-1571-CMC-SVH, 2017 WL 9275168, at *2 (D.S.C. Nov. 9, 2017), Report and Recommendation adopted by 2018 WL 636122 (D.S.C. Jan. 30, 2018), aff'd, 745 Fed.Appx. 478 (4th Cir. 2018); Avila v. Edgefield Fed. Prison, No. 0:10-cv-2370-HMH-PJG, 2011 WL 2973617, at *4 (D.S.C. June 30, 2011) (noting that, to the extent the complaint attempted to raise claims of cruel and unusual punishment, denial of due process, and denial of access to the courts, the complaint failed to contain sufficient factual allegations of personal involvement by any of the defendants to state a plausible claim), Report and Recommendation adopted by 2011 WL 2938216 (D.S.C. July 21, 2011), aff'd, 463 Fed.Appx. 231 (4th Cir. 2012). Although pro se litigants are entitled to liberal construction of their pleadings, “[t]he ‘special judicial solicitude' with which a district court should view . . . pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.” Weller, 901 F.2d at 391.
Plaintiff was warned that to proceed with this action against Defendant, “he must file an Amended Complaint that contains ‘a short and plain statement of the claim showing that [he] is entitled to relief.'” [Doc. 33 at 5 (quoting Fed.R.Civ.P. Rule 8(a)(2).] However, Plaintiff has not filed an amended complaint to cure the pleading deficiencies of his original pleadings. As such, the undersigned concludes that this action should be dismissed because the Complaint fails to state a claim for relief that is plausible.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action without further leave to amend and without issuance and service of process pursuant to Rule 41(b) for failure to prosecute or comply with the Court's Orders and/or pursuant to 28 U.S.C. § 1916A for failure to state a claim.
As noted, Plaintiff was directed to file an amended complaint to cure the deficiencies noted by the Court in its Order dated August 6, 2021. [Doc. 33.] Plaintiff has not filed an amended complaint or attempted to cure the deficiencies in his original filings. Accordingly, the undersigned recommends dismissal without further leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice).
IT IS SO RECOMMENDED.
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 250 East North Street Greenville, 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).