Opinion
C/A No. 9:19-967-HMH-BM
11-05-2019
Shannon Maurice Smith, Jr., Plaintiff, v. Cpt. Carter, Chaplain Terrance Smalls, Sheriff Al Cannon, Charleston County Sheriff's Office, Defendants.
REPORT AND RECOMMENDATION
The Plaintiff, Shannon Maurice Smith, Jr., proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. He is currently a pretrial detainee at the Hill-Finklea Detention Center. At the time of the alleged incidents, he was a pretrial detainee at the Sheriff Al Cannon Detention Center (CCDC) in Charleston, South Carolina. Plaintiff filed an Amended Complaint on September 17, 2019. ECF No. 48.
Discussion
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow for the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). However, even when considered pursuant to this liberal standard, this Amended Complaint is subject to summary dismissal. 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].
In his Amended Complaint, Plaintiff alleges that his First Amendment religious freedom rights were violated while he was detained at the CCDC beginning in February 2018. He claims he was denied the religious materials he requested, was not served a kosher diet, was penalized for peacefully protesting through a hunger strike, and was threatened by Defendant Captain Carter. ECF No. 48 at 5. Plaintiff admits that he received some of the Jewish faith materials and other items he requested, but alleges that he did not receive all requested items and was not given a kosher diet (even though he pointed out to Carter that a packet given to him at CCDC stated that "when one is pondering conversion they should obtain kosher food and participate in all Jewish holidays."). ECF No. 48-1 at 1. He also states that it seemed that "every time I went to SMU my property went missing and I was never given any type of retribution or restitution for my lost items...." Id. at 2. Plaintiff requests monetary damages and injunctive relief, including that Defendant Small no longer be able to be a chaplain and that the retired captain (which appears to refer to Defendant Captain Carter) "suffer some type of penalty toward her retirement." ECF No. 48 at 6, ECF No. 48-1 at 3.
First, Plaintiff has not made any claims against Defendants Sheriff Al Cannon or the Charleston County Sheriff's Office in his Complaint, other than to assert that these Defendants are the employers of Defendants Carter and Smalls. See ECF No. 48 at 4. To the extent that Plaintiff seeks to hold Sheriff Cannon and the Charleston County Sheriff's Office liable under a respondeat superior theory, such a claim is not available in a § 1983 action. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Sheriff Cannon and the Charleston County Sheriff's Office may be liable for injuries stemming from a deprivation of constitutional rights by Sheriff's deputies only "if [they] cause[d] such a deprivation through an official policy or custom." Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citing Monell, 436 U.S. at 690-91). Sources of "official policy or custom" giving rise to liability include (1) "written ordinances and regulations"; (2) "affirmative decisions of individual policymaking officials"; (3) omissions by policymaking officials "that manifest deliberate indifference to the rights of the citizens"; or (4) a practice "so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law." Id. (internal quotation marks and citations omitted). Plaintiff makes no allegations regarding the policies or customs of the Sheriff and/or the Charleston County Sheriff's Office; therefore, Plaintiff fails to state a § 1983 claim against Sheriff Cannon and the Charleston County Sheriff's Office. Plaintiff's allegation that the Sheriff or the Sheriff's Office employed Carter and Smalls is simply insufficient to make such a showing. See Carter v. Georgetown Cty. Sheriff's Dep't, No. 3:09-cv-779-CMC-JRM, 2009 WL 1393509, at *4 (D.S.C. May 18, 2009)[granting summary dismissal because "a municipality may not be held liable under § 1983 solely because it employs the tort-feasor; rather, a plaintiff must identify a municipal 'policy' or 'custom' that caused the plaintiff's injury"].
Further, even if an otherwise proper claim had been alleged against these Defendants, Defendant Charleston County Sheriff's Office and Defendant Sheriff Al Cannon (in his official capacity) are entitled to Eleventh Amendment immunity from a suit for monetary damages because Sheriff's Departments in South Carolina are state agencies, not municipal departments, and Sheriffs and their deputies are state employees. See Edwards v. Lexington Cnty. Sheriff's Dep't, 688 S.E.2d 125, 127 n.1 (S.C. 2010) ["[U]nder South Carolina law, the sheriff and sheriff's deputies are State, not county, employees."]; Allen v. Fid. and Deposit Co., 515 F. Supp. 1185, 1189-91 (D.S.C. 1981) [County cannot be held liable for actions of deputy sheriff because deputy sheriffs serve at pleasure of the Sheriff, not the County], aff'd, 694 F.2d 716 (4th Cir. 1982) [Table]; Comer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) [suit against Sheriff of Greenville County: ". . . Sheriff Brown is an arm of the State."]. The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina, its integral parts, or its officials in their official capacities, by a citizen of South Carolina or a citizen of another state. See Alden v. Maine, 527 U.S. 706 (1999); College Savs. Bank v. Florida Prepaid Educ. Expense Bd., 527 U.S. 666 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)(reaffirming Hans v. Louisiana, 134 U.S. 1, 10 (1890) [holding that a citizen could not sue a state in federal court without the state's consent]; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)[although express language of Eleventh Amendment only forbids suits by citizens of other States against a State, Eleventh Amendment bars suits against a State filed by its own citizens]; Alabama v. Pugh, 438 U.S. 781, 782 (1978); Will v. Michigan Dep't of State Police, 491 U.S. 58, 61-71 (1989); Edelman v. Jordan, 415 U.S. 651, 663 (1974)[stating that "when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its [Eleventh Amendment] sovereign immunity from suit even though individual officials are nominal defendants"] (quoting Ford Motor Co. v. Dep't. of Treasury, 323 U.S. 459, 464 (1945)); see also Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996); Bellamy v. Borders, 727 F. Supp. 247, 248-50 (D.S.C. 1989); Coffin v. South Carolina Dep't of Social Servs., 562 F. Supp. 579, 583-85 (D.S.C. 1983); Belcher v. South Carolina Bd. of Corrs., 460 F. Supp. 805, 808-09 (D.S.C. 1978).
A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office, and neither a State nor its officials acting in their official capacities are "persons" under § 1983. Will v. Michigan Dep't. of State Police, 491 U.S. at 71 (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). As such, it is no different from a suit against the State itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Monell, 436 U.S. at 690, n. 55.
While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the states' Eleventh Amendment immunity in § 1983 cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979). Further, although a State may consent to a suit in a federal district court, Pennhurst, 465 U.S. at 99 & n.9, the State of South Carolina has not consented to such actions. To the contrary, the SCTCA expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e).
Insofar as Plaintiff has named proper party Defendants, to the extent he requests monetary damages for his personal property that allegedly went missing, the Fourth Circuit Court of Appeals has held that unauthorized deprivations of personal property by state officials do not rise to a the level of federal due process violation where the state provides post-deprivation procedures to secure the return of the property or to compensate for the loss. See Mora v. City of Gaithersburg, 519 F.3d 216, 230-31 (4th Cir. 2008); Bogart v. Chapell, 396 F.3d 548, 561-63 (4th Cir. 2005); Yates v. Jamison, 782 F.2d 1182, 1183-84 (4th Cir. 1986). In South Carolina, the state provides post-deprivation procedures to secure the return of the property or to compensate for the loss. The case law is clear that the availability of a state cause of action for an alleged loss of property provides adequate procedural due process; in other words, where state law provides such a remedy, no federally guaranteed constitutional right is implicated. See King v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986); Slaughter v. Anderson, 673 F. Supp. 929, 930 (N.D. Ill. 1987).
Therefore, even if Plaintiff is alleging that a Defendant intentionally took his personal properly, "an intentional deprivation of property by a state employee, if unauthorized, does not violate the Due Process Clause if a meaningful post-deprivation remedy for loss is available." Hammond v. Dean, No. 3:07-cv-654-SB, 2007 WL 3002362, at *2 (D.S.C. Oct. 9, 2007) (citing Hudson v. Palmer, 468 U.S. 517 (1984)); see Hudson, 468 U.S. at 530-536 [holding that intentional deprivations of property by State employees do not violate due process until and unless the State refuses to provide a suitable post-deprivation remedy]; Mora, 519 F.3d at 230-31 [finding that the state courts were open to plaintiff for claims of conversion or trespass to chattels and there was no reason to think that the state process was constitutionally inadequate]; see also Samuel v. Ozmint, No. 3:07-cv-178-PMD-JRM, 2008 WL 512736, *7 (D.S.C. Feb. 25, 2008) [noting that claims related to taking of personal property are cognizable under South Carolina state law]; Greene v. Stonebreaker, No. 9:06-cv-3392-PMD-GCK, 2007 WL 2288123, *6 (D.S.C. Aug. 6, 2007)[noting that a person in South Carolina appears to have adequate post-deprivation remedies for personal property loss]. As such, Plaintiff's § 1983 claims based on any intentional loss of personal property against Defendant(s) fail to state a claim upon which relief may be granted.
Moreover, even assuming Plaintiff's claim is that a Defendant was negligent in the handling of his personal property, it is well settled that the Due Process Clause is not implicated by a negligent act of a governmental official causing unintended loss of property. See Daniels v. Williams, 474 U.S. 327 (1986); Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995). Since Section 1983 does not impose liability for violations of duties of care arising under state law, to the extent that Plaintiff is complaining of negligent conduct by a Defendant(s), he fails to set forth a viable claim under § 1983. See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200-203 (1989)["[t]he Due Process Clause of the Fourteenth Amendment ... does not transform every tort committed by a state actor into a constitutional violation"].
A negligence claim relating to lost property may be cognizable under the South Carolina Tort Claims Act (SCTCA), S.C. Code Ann. § 15-78-10 et seq. Section 15-78-30 and its subparts encompass a "loss" of property from an occurrence of negligence proximately caused by a person employed by the State of South Carolina, a state agency, or political subdivision while acting within the scope of his or her employment. However, suits brought under the SCTCA must be brought in a South Carolina state court. See S.C. Code Ann. § 15-78-20(e)[providing that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court]. Thus, Plaintiff cannot pursue a claim under the SCTCA in this Court.
It must also be noted that Plaintiff has now been transferred back to the Hill-Finklea Detention Center in Berkeley County. See ECF No. 48 at 2. Plaintiff does not appear to have any pending criminal charges in Charleston County, but has pending charges in Berkeley County, including 2017 charges for Murder and Grand Larceny/Larceny and a 2019 charge for Assault and Battery by Mob, Third Degree. See Charleston County Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx; Berkeley County Public Index, https://publicindex.sccourts.org/Berkeley/PublicIndex/PISearch.aspx. Thus, to the extent that Plaintiff seeks injunctive (and/or declaratory relief), such claims are moot as Plaintiff is no longer a detainee at the CCDC. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) ["[A] prisoner's transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there."] (citing Incumaa v. Qzmint, 507 F.3d 281, 286-87 (4th Cir. 2007)); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.l991)[The transfer of a prisoner renders moot his claims for injunctive and declaratory relief.].
The Court may take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869, at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008) [noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
Additionally, to the extent Plaintiff requests that Defendants Carter and/or Smalls be terminated or that Defendant Carter suffer a penalty as to her retirement, such relief is not available under the law because this Court cannot terminate these Defendants from employment or create a retirement penalty for Carter. See Maxton v. Johnson, 488 F.Supp. 1030, 1032 n. 2 (D.S.C.1980)[a federal district court lacks inherent power to hire, remove, or reassign officials not within the executive control of that federal district court], citing United States v. White County Bridge Commission, 275 F.2d 529, 535 (7th Cir. 1960).
Finally, Defendants Carter and Smalls should be dismissed pursuant to Rule 4(m) as Plaintiff has not provided proper service documents for these Defendants and these Defendants have never been served. Service was previously attempted on Defendants Carter and Smalls (they were named as Defendants in both the original Complaint and the Amended Complaint), but the summonses for both were returned unexecuted. It was specifically noted that Defendant Smalls was not an employee of Charleston County and Defendant Carter was no longer employed by the County. In an Order dated July 8, 2019, Plaintiff was reminded that he was responsible for providing information sufficient to effect service on these Defendants and that the United States Marshal cannot serve an inadequately identified Defendant. Plaintiff was notified that he should provide the Court with any additional identification or location information he might have for these Defendants without delay and was warned, pursuant to Federal Rule 4(m), that these Defendants might be dismissed as parties to this action if they were not served with process. ECF No. 25. In response, Plaintiff filed some general descriptions of these Defendants, but no further addresses for service of process. After Plaintiff filed his Amended Complaint, an Order was issued on September 25, 2019, directing Plaintiff to provide proper service documents for newly named Defendants Charleston County Sheriff's Office and Sheriff Al Cannon and again noting that Plaintiff had not provided further addresses or information needed to serve Defendants Carter and Smalls. ECF No. 50. In a letter filed October 10, 2019, Plaintiff stated that he had no further information to help serve Defendants Carter and Smalls and that he "[does not] want to waste the Marshal['s] time...." ECF No. 53. More than ninety days have passed since service was issued as to Defendants Carter and Smalls, and despite notice to Plaintiff, addresses necessary for service have not been provided and service has not been made. Therefore, Defendants Carter and Smalls are entitled to dismissal without prejudice as party Defendants pursuant to Rule 4(m), Fed. R. Civ. P.
The 90-day limit established by Rule 4(m) begins on the date on which the summons(es) are issued (it does not run during the initial review of the case), which for Defendants Carter and Smalls was on June 11, 2019. The service clock starts on the date the complaint is filed against a defendant, Fed. R. Civ. P. 4(m), and "is not restarted by the filing of an amended complaint." Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006)["[T]he [90]-day period provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to those defendants newly added in the amended complaint."].
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Amended Complaint without prejudice and without issuance and service of process.
Plaintiff's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge November 5, 2019
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).