Opinion
C/A 6:24-cv-00176-JDA-KFM
04-15-2024
Matthew Jerry Richey, Plaintiff, v. Sheriff Chad McBride, Captain David Baker, Nathan Mitchell, Jane Glover Lieutenant Vickery, Anderson County Detention Center, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on January 11,2024 (doc.
1). On March 19, 2024, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 19). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 14-15). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
This is a § 1983 action filed by the plaintiff, a pretrial detainee at the Anderson County Detention Center (“the Detention Center”), seeking damages and injunctive relief from the defendants (doc. 1). Of note, some of the plaintiff's allegations involve his pending criminal charges for murder and possession of a weapon during a violent crime, which were indicted by a grand jury. See Anderson County Public Index, https://publicindex. sccourts.org/Anderson/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2023A0410200237, 2023A0410200238) (last visited April 15, 2024).
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
The plaintiff alleges that he is subject to unconstitutional conditions of confinement at the Detention Center, including black mold in the cells and showers; only receives one roll of toilet paper per week; he was not allowed to shower once for six days; and he has been on lockdown (id. at 2, 3-4, 6, 8-9, 10). He also contends that there is no heat and that all inmates have to use the same three showerheads (id. at 3). Every week, he contends he only receives about one hour of recreation per day (id. at 3, 5-6, 8-9). He further contends that the Detention Center is overcrowded (id. at 5, 9, 10). He contends that he was illegally placed on lockdown for six days for demanding a towel and clean linens from Detention Center employees (id. at 9, 11). He further contends that linens, jump suits, towels, and washcloths smell bad even though Lt. Glover indicates that they are clean (id.).
He also contends that he has not been provided a preliminary hearing and alleges that his rights have been violated because he has not been provided a bond (id. at 2, 4, 8, 10, 11). He contends that he is being held unconstitutionally because there was no probable cause to support his arrest (id. at 4, 10, 11). The plaintiff alleges he has filed more than 200 grievances and was told to stop filing grievances or his kiosk privileges would be suspended (id. at 2, 5). He also contends that responses to his grievances have been rude and asinine (id. at 2, 5, 8). He further contends that there are no emergency intercoms at the Detention Center, so there is a delayed response to emergencies (id. at 6). He further contends that legal mail has been delayed and that he does not have access to a notary (id. at 7). He also alleges that he is not provided appropriate medical care (id. at 7). For relief, the plaintiff seeks money damages, an injunction requiring a better attorney be appointed to represent him in his pending criminal charges, and to have his pending charges dismissed (id. at 10).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied 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). Further, the plaintiff is a prisoner under the definition of 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, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the 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.
As a pro se litigant, the plaintiff's 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 (2007) (per curiam). 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).
This 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 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's complaint is subject to summary dismissal. As an initial matter, to the extent the plaintiff purports to bring this action on behalf of himself and other pretrial detainees at the Detention Center (doc. 1), he may not do so because a prisoner cannot file or maintain a lawsuit on behalf of others. See Hummer v. Dalton, 657 F.2d 621, 625-26 (4th Cir. 1981) (a prisoner cannot act as a “knight-errant” for others); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“it is plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.”). As such, the plaintiff is instructed that this action is proceeding with respect to his claims against the defendants only.
Younger Abstention
The plaintiff's complaint, as noted, seeks an order appointing a new attorney in his pending state criminal charges as well as to have his pending state criminal charges dismissed (see generally doc. 1). As noted above, the plaintiff has two pending charges in the Anderson County General Sessions Court for murder and possession of a weapon during a violent crime. See Anderson County Public Index (enter the plaintiff's name and 2023A0410200237, 2023A0410200238) (last visited April 15, 2024). Because a federal court may not award injunctive relief that would affect pending state criminal proceedings absent extraordinary circumstances, this court should abstain from interfering with them. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court should not interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). Younger noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-45; see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (explaining the circumstances when Younger abstention is appropriate). From Younger and its progeny, the Fourth Circuit Court of Appeals has culled the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).
Here, the first criterion is met, as the plaintiff is involved in ongoing state criminal proceedings. As for the second criterion, the Supreme Court has stated that the “States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). The Court also addressed the third criterion in noting “‘that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.'” Gilliam, 75 F.3d at 904 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)). Here, the plaintiff has the opportunity to argue in the Anderson County General Sessions proceedings that his attorney has been ineffective or that his charges should be dismissed because they lack probable cause or because he was denied a preliminary hearing. Accordingly, the plaintiff's allegations fail to make a showing of “extraordinary circumstances” justifying federal interference with the state proceedings. See Robinson v. Thomas, 855 F.3d 278, 286 (4th Cir. 2017) (“A federal court may disregard Younger's mandate to abstain from interfering with ongoing state proceedings only where ‘extraordinary circumstances' exist that present the possibility of irreparable harm.”). Therefore, to the extent the plaintiff seeks an order from this court dismissing his pending criminal prosecutions in the Anderson County General Sessions Court or appointing a new attorney to represent the plaintiff in those proceedings, this court should abstain from hearing this action.
Failure to State a Claim
Even aside from Younger, the plaintiff's complaint is subject to dismissal for failure to state a claim. As an initial matter, to the extent the plaintiff's complaint can be construed as requesting that his state criminal convictions be dismissed and he be released from the Detention Center, such relief may only be obtained in a habeas action, not in a § 1983 case. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (complaint or petition challenging the fact or duration of confinement should be construed and processed as a habeas corpus petition, while a complaint or petition challenging the conditions of confinement should be construed and processed as a complaint pursuant to 42 U.S.C. § 1983). In Heck, the United States Supreme Court reiterated that release from prison is not a remedy available under 42 U.S.C. § 1983. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983” (citing Preiser, 411 U.S. at 488-90)). Therefore, the plaintiff may not seek release from custody in this action.
Fourth Amendment Claims
To the extent the plaintiff seeks damages from the defendants based upon his arrest without a valid warrant (doc. 1), the plaintiff alleges claims pursuant to the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. “Except in certain well-defined circumstances, a search or seizure . . . is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” Skinnerv. Ry. Lab. Execs.'Ass'n, 489 U.S. 602, 619 (1989). Further, § 1983 actions premised on malicious prosecution, false arrest, and/or false imprisonment are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”).
However, “an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (internal citation and quotation marks omitted); see Provet v. State of S.C., C/A No. 6:07-cv-01094-GRA-WMC, 2007 WL 1847849, at *5 (D.S.C. June 25, 2007) (section 1983 claims of false arrest and malicious prosecution were precluded because of indictment). This Court, as noted above, has taken judicial notice of the plaintiff's pending charges in the Anderson County General Sessions Court, including grand jury indictments on both of his pending charges. See Anderson County Public Index (enter the plaintiff's name and 2023A0410200237, 2023A0410200238) (last visited April 15, 2024). The indictments act as a bar to the plaintiff's claims that he was falsely arrested. As such, the plaintiff's Fourth Amendment claims are also subject to summary dismissal.
Bail Claim
To the extent the plaintiff argues that he has been improperly denied bail, he seeks relief under the Eighth Amendment (doc. 1 at 2, 4, 8, 10, 11). The Eighth Amendment, made applicable to the states through the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive finds imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII; see also Grimes v. Pszczolkowski, C/A No. 1:14-cv-13, 2015 WL 144619, at *22 (N.D. W.Va. Jan. 12, 2015). “However, the United States Constitution does not establish an absolute right to bail, nor does federal statutory law provide a right to bail in state criminal cases.” Odom v. Smalls, C/A No. 3:09-cv-00629-PMD, 2009 WL 3805594, at *3 (D.S.C. Nov. 12, 2009). “The Eighth Amendment addresses pretrial release by providing merely that ‘[e]xcessive bail shall not be required.' This Clause, of course, says nothing about whether bail shall be available at all.” United States v. Salerno, 481 U.S. 739, 752 (1987). Here, publicly-available dockets for the plaintiff's pending criminal charges indicate that the plaintiff's request for bond has been reviewed and denied after a hearing - meaning that although unsuccessful, the plaintiff has had an opportunity to be heard regarding his request/eligibility for bail - and his latest motion for bail was denied in February 2024. See Anderson County Public Index (enter the plaintiff's name and 2023A0410200237, 2023A0410200238) (last visited April 15, 2024). Accordingly, because the plaintiff has no federal right to be released on bond, his claim regarding the denial of bond is subject to dismissal. See Odom, 2009 WL 3805594, at *3.
Anderson County Detention Center
The Detention Center is subject to dismissal because it is not a “person” as defined by § 1983. It is well settled that only “persons” may act under color of state law; thus, a defendant in a § 1983 action must qualify as a “person.” As noted, this defendant is not a person; hence, it is not subject to suit under 42 U.S.C. § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Nelson v. Lexington Cnty. Det. Ctr., C/A No. 8:10-cv-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) (finding that a building-the detention center-is not amenable to suit under § 1983). Accordingly, the Detention Center is entitled to summary dismissal.
No Personal Allegations
The defendants do not appear in the plaintiff's complaint beyond the caption and being named as defendants - other than a passing reference that Lt. Glover provides linens that she says are clean and the plaintiff alleges smell bad (see doc. 1). Indeed, it is unclear in what capacity these defendants were involved in the plaintiff's alleged various constitutional deprivations. Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995); see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal involvement”). Moreover, as recently reiterated by the Fourth Circuit, general, conclusory, and collective allegations against groups of defendants fail to allege a plausible claim. See Langford v. Joyner, 62 F.4th 122, 125 (4th Cir. Mar. 2, 2023) (recognizing that the plaintiff's complaint failed to meet the plausibility standard when it did not set forth who the defendants were beyond being employees where he was incarcerated or in what capacity the defendants interacted with the plaintiff). As such, the complaint fails to state a claim on which relief may be granted against the defendants and they are subject to summary dismissal.
Conditions of Confinement Claims
The plaintiff's various conditions of confinement claims (presuming the plaintiff had made personal allegations of wrongdoing against the defendants) - that he receives insufficient toilet paper, the cells and showers have black mold, that a lot of detainees use three showerheads, that he has limited recreation time, that the cells are cold and overcrowded, the linens smell bad, and that there are no emergency intercoms - are also subject to summary dismissal. At all relevant times herein, the plaintiff was a pretrial detainee; thus, his claims are evaluated under the Fourteenth Amendment rather than the Eighth Amendment (which is used to evaluate conditions of confinement claims for individuals convicted of crimes). See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 243-44 (1983). In any event, “[the] due process rights of a pretrial detainee are at least as great as the [E]ighth [A]mendment protections available to the convicted prisoner.” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Recently, the Fourth Circuit held in a published decision that pretrial detainees could state a Fourteenth Amendment claim for deliberate indifference to a serious risk of harm on a purely objective basis that the challenged action is not related to a legitimate non-punitive governmental purpose or is excessive in relation to that purpose. Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023) (citing Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)).
Here, the complained-of conditions do not rise to the level of constitutional violations. See Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)) (noting that the Constitution does not mandate comfortable prisons, and only deprivations which deny the minimal civilized measure of life's necessities are sufficiently grave to provide the basis of a § 1983 claim); Thompson v. Brown, C/A No. 3:11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). Further, the plaintiff has alleged that he has been allowed recreation and out of cell time each day, albeit less time than he would prefer. See Collins v. Williams, C/A No. 6:18-cv-01491-RMG, 2019 WL 4751718, at *4 (D.S.C. Sept. 27, 2019) (noting no serious deprivation even when plaintiff denied recreation for a few months). Indeed, the plausibility standard requires more “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Iqbal, 556 U.S. at 678). As such, the plaintiff's conditions of confinement claims are subject to summary dismissal.
Denial of Access to the Courts Claim
The plaintiff's allegation that he has been denied access to the courts because he does not have access to a notary and his mail has been delayed is also subject to summary dismissal. As an initial matter, pretrial detainees, temporarily held in a county facility while awaiting trial, do not have a constitutional right to a law library, as the Constitution guarantees a right to reasonable access to the courts, not to legal research or a law library. See Lewis v. Casey, 518 U.S. 343, 351 (1996). Additionally, a claim for denial of access to the courts must be pled with specificity. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Further, in order to state a constitutional claim for denial of access to the courts, a prisoner must show actual injury. Id.; see Lewis, 518 U.S. at 349. The actual injury requirement can be satisfied by demonstrating that a non-frivolous legal claim was frustrated or impeded by some actual deprivation of access to the court. Lewis, 518 U.S. at 352-53. Here, the plaintiff's conclusory allegation that he has been denied access to the courts - with no information regarding meritorious claims he contends were impeded by Detention Center employees - fails to “demonstrate” actual injury or state a claim for relief. Further, an occasional or negligent delay or interference with personal (or legal) mail, without more, does not impose a deprivation of Constitutional proportions. See Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995); Pearson v. Simms, 345 F.Supp.2d 515, 519 (D. Md. 2003), aff'd 88 Fed.Appx. 639 (4th Cir. 2004). Similarly, the plaintiff's filings in this case as well as in a petition for a writ of mandamus filed in the Anderson County Court of Common Pleas, belie the plaintiff's claim that he lacks access to the courts. See Anderson County Public Index (enter the plaintiff's name and 2023CP0401648) (last visited April 15, 2024). As such, the plaintiff's denial of access to the courts claim is also subject to summary dismissal.
Access to Grievance Process Claim
In addition to the foregoing, to the extent the plaintiff alleges that his rights have been violated because he has been denied access to the Detention Center's grievance process or his grievances have been improperly denied (doc. 1 at 2, 5, 8), his claim is subject to dismissal. “[I]t is well settled that inmates have no federal constitutional right to have any inmate grievance system in operation at the place where they are incarcerated.” Rivera v. Leonard, C/A No. 5:15-GV-G1191-DCN, 2016 WL 3364905, at *4 (D.S.C. June 17, 2016), aff'd, 672 Fed.Appx. 262 (4th Cir. 2016), cert. denied 583 U.S. 845 (2017). Further, because “inmate grievance procedures are not constitutionally required in state prison systems, the failure to follow grievance procedures does not give rise to a § 1983 claim.” Doans v. Rice, 831 F.2d 1057, 1987 WL 38813 (4th Cir. 1987) (unpublished table decision). As such, the plaintiff's claim that he has been denied access to the grievance process at the Detention Center is subject to summary dismissal.
Deliberate Indifference to Medical Needs Claim
Liberally construed, the plaintiff also alleges that he has been denied appropriate medical care - although he has failed to allege what medical care he has been denied (doc. 1 at 7). A pretrial detainee's claim of deliberate indifference to medical needs is properly brought pursuant to the Fourteenth Amendment. See Short, 87 F.4th at 611. In Short, the Fourth Circuit noted that to state a medical indifference claim a pretrial detainee must allege: (1) he/she suffered from a medical condition or injury that posed a substantial risk of serious harm; (2) the defendant “intentionally, knowingly, or recklessly acted or failed to act to appropriately address the risk that the condition posed”; (3) the defendant knew or should have known that the detainee had the condition and that the defendant's action/inaction posed an “unjustifiably high risk of harm”; and (4) the detainee was harm as a result. Id. Here, the plaintiff's complaint contains none of the above elements to state a medical indifference claim (see doc. 1). For example, the plaintiff has not identified a serious medical condition for which he required care, has provided no allegations that the defendants failed to act in response to his medical condition, and has failed to allege any injury as a result (id.). As such, the plaintiff's medical indifference claim is also subject to summary dismissal.
Retaliation Claim
In passing, the plaintiff appears to assert retaliation because he was disciplined for demanding clean linens and uniforms (doc. 1 at 9, 11). Where a plaintiff alleges that an act was taken in response to the exercise of a constitutionally protected First Amendment right, the plaintiff must allege that (1) he engaged in “protected First Amendment activity, (2) [the defendant] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and [the defendant's] conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). Because conduct that “tends to chill the exercise of constitutional rights might not itself deprive such rights,” a plaintiff can plausibly allege a retaliation claim without alleging an actual deprivation of his First Amendment rights. Constantine, 411 F.3d at 500. With respect to causation, a plaintiff must plausibly allege knowledge by the defendant of a plaintiff's protected activity as well as that the retaliation took place within some “temporal proximity” of that activity. Id. at 501; see Germain v. Bishop, C/A No. TDC-15-1421, 2018 WL 1453336, at *14 (D. Md. Mar. 23, 2018). A prisoner must present more than conclusory accusations of retaliation, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996).
Here, it is unclear how the plaintiff himself engaged in protected activity and he has not alleged which of the defendants he contends were involved in the retaliation. Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. Adams, 40 F.3d at 74-75; see Iqbal, 556 U.S. at 676 (noting that liability under § 1983 “requires personal involvement”). Moreover, as noted above, general, conclusory, and collective allegations against groups of defendants fail to allege a plausible claim. See Langford, 62 F.4th at 124-25. As such, the plaintiff's retaliation claim is also subject to dismissal.
RECOMMENDATION
By order issued March 19, 2024, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 19). The plaintiff failed to file an amended complaint within the time provided. As such, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, C/A No. 201620 (4th Cir. Aug. 17, 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
The plaintiff is warned that if the United States District Judge assigned to this matter adopts this report and recommendation, the dismissal of this action for failure to state a claim could later be deemed a strike under the three-strikes rule. See Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023).
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 committees 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, Room 2300
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).