Opinion
C. A. 4:24-1756-MGL-TER
05-03-2024
Kenneth Oneil Rouse, Jr., #0000009847, Plaintiff, v. VitalCore Health Strategies, Natile Bell, 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
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Liberally construed, Plaintiff's allegations may involve medical deliberate indifference. (ECF No. 1). Plaintiff alleges “Bell violate[d] due process of my 14th Amendment right.” (ECF No. 1 at 4). Plaintiff alleges generally that he is not seen timely by medical and has been in increasing pain as a result of his intestine being in his testicle sack. (ECF No. 1 at 6). Plaintiff alleges he was told to wait until it gets worse. Plaintiff alleges it is the size of a grapefruit. (ECF No. 1 at 6-7). Plaintiff alleges it is related to a hernia. Plaintiff alleges he was told there was not enough staff to take him to a hospital. Plaintiff alleges he has not seen a doctor since he has been detained in November 2023. Plaintiff alleges it feels like he is being kicked every two minutes. Plaintiff alleges he has insurance that will pay for any procedures and wrote a grievance explaining this about his insurance. Plaintiff alleges he is not getting responses back to all of his grievances, and when he receives a response, it just states “see your provider.” (ECF No. 1 at 7). Plaintiff alleges as injuries that his stomach muscle is still tearing his hernia and getting larger into his testicle. (ECF No. 1 at 8). Plaintiff requests monetary damages and injunctive relief of transport to a procedure. (ECF No. 1 at 8).
While Plaintiff's allegations as to his statement of claim are framed as “they” and “she,” there is only one individual person defendant named here, Defendant Bell; at this procedural stage, Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendant Bell, and this same day service and issuance of summonses as to only this Defendant has been authorized by separate order.
Defendant VitalCore Health Strategies is a private corporation, even though it may be contracted to perform services for government entities. The Fourth Circuit has addressed private corporation liability under § 1983:
We have recognized, as has the Second Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers. Specifically, a private corporation is not liable under § 1983 for torts committed by special police officers when such liability is predicated solely upon a theory of respondeat superior. See Powell v. Shopco Laurel Co.,
678 F.2d 504 (4th Cir.1982); Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406 (2d Cir.1990); see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (concluding that private corporation is not subject to § 1983 liability under theory of respondeat superior regarding acts of private security guard employed by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (same). Rather, a private corporation is liable under § 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights. See Rojas, 924 F.2d at 408; Sanders, 984 F.2d at 976; Iskander, 690 F.2d at 128.Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir. 1999)(emphasis added). Plaintiff has not alleged any actions VitalCore did or any policies enacted by VitalCore that caused Plaintiff harm. With no allegations aligned with the above law against VitalCore in the Complaint, VitalCore is not amenable to suit under § 1983 solely based on VitalCore being the employer of an individual defendant. See Austin, 195 F.3d at 728. VitalCore is subject to summary dismissal.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendant VitalCore Health Strategies be summarily dismissed with prejudice and 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 Bell.
Plaintiff's attention is directed to the important notice on the next page.
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).