Opinion
C. A. 6:21-cv-00283-BHH-KFM
05-18-2021
Jason Russell Sullivan, Plaintiff, v. Gateway Village Apartments, Stewart Sarratt, John Abdalla, Patrick Wilkinson, Brittany Scott, J. Land, Defendants.[1]
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis, brought 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 21, 2021 (doc. 1). On April 2, 2021, 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. 13). 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 17-18). On April 26, 2021, after the deadline to file an amended complaint, the plaintiff's amended complaint was entered on the docket (doc. 16). Because the plaintiff's amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
ALLEGATIONS
The plaintiff, a pretrial detainee in the Greenville County Detention Center (“the Detention Center”), brings this § 1983 action alleging various constitutional violations by the defendants (doc. 1). The court takes judicial notice of the plaintiff's applicable criminal proceedings in the General Sessions Court of Greenville County. See Greenville County Public Index, https://publicindex.sccourts.org/Greenville/ PublicIndex/PISearch.aspx (enter the plaintiff's name and 2015A2330208104, 2016A2320400681, 2016A2320400682, 2016A2320400683, 2017A2320602991, 2018A2330203783, 2019A2320400211, 2020GS2307835A) (last visited May 18, 2021).
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.'”).
As an initial matter, as noted below, the plaintiff's amended complaint omits several defendants and claims (doc. 16). Additionally, the majority of the plaintiff's amended complaint references the undersigned's summary of the plaintiff's initial complaint in the order issued April 2, 2021, and disputes the way the claims were summarized (id.). Nevertheless, the following is a summary of the plaintiff's remaining allegations - to the extent the allegations can be liberally construed from the plaintiff's amended complaint.
The plaintiff alleges that he has false drug charges on his record from 2011 and/or 2015/2017 (doc. 16 at 15). He alleges that he never pled guilty to charges that appear on his record and that the grand jury indictment and sentencing sheets for some of the charges are fraudulent (id. at 15-16). Instead, the plaintiff contends that he only signed a paper from Mr. Abdalla, his public defender, to plead guilty in No. 2016A2320400682 (id. at 16). He further contends that he did not plead guilty to case No. 2016A2320400682 in exchange for the dismissal of No. 2016A2320400681 (id. at 16, 20). Instead, he contends that No. 2016A2320400681 was dismissed because he showed that Ms. Hopper, the mother of his daughter, was lying (id.).
With respect to Mr. Sarratt, the plaintiff contends that he acted as the plaintiff's public defender in 2015, for charges involving Ms. Hopper (id. at 17). He contends that a phone was provided to Mr. Sarratt during that time so that the data could be downloaded and shown to the solicitor to prove that Ms. Hopper was lying, but Mr. Sarratt did not download the information off the phone (id. at 17, 22). He contends that a female public defender appeared at his preliminary hearing, but “when she found out what was going on” the plaintiff alleges she “didn't want to be a part of it” (id. at 17). The plaintiff also asserts contends that the judge presiding over the preliminary hearing had a personal bias against him because she thought the plaintiff was her grandchild's father and the reason that her daughter died (id. at 18). The plaintiff contends that because the personal bias was ignored, the charges were bound over even though they should have been dismissed (id.).
The plaintiff contends that Ms. Hopper brought criminal charges against him in October 2015, in order to prevent him from being in the delivery room when his daughter was born (id.). He further contends that a Greenville Health Department employee with a bias against the plaintiff helped Ms. Hopper leave the plaintiff's name off his daughter's birth certificate (id. at 19). Ms. Hopper has used several state agencies and private businesses to get the plaintiff brought up on more charges to prevent the plaintiff from having a relationship with his daughter (id. at 19-20).
The plaintiff further contends that Younger abstention does not apply to this case because “every case is different” and different cases should not be compared (id. at 20). Instead, he contends that the ongoing criminal prosecutions indicate a pattern of injustice being carried out against the plaintiff (id.). The plaintiff also contends that Heck does not apply to this action because he never pled to any criminal charges (id. at 25). The plaintiff reiterates that in 2016, Mr. Wickensimer denied the plaintiff copies of documents filed in his cases, access to transcripts of hearings, and helped cover up actions by Mr. Chambers in 2017 (id. at 21). The plaintiff also asserts that in December 2020, inmates in the secured housing unit (“SHU”) were only provided socks and Pepsi, but not other donated items and Mr. Vandermosten indicated that the SHU inmates were not provided other items because inmates in the SHU could not have canteen items (id. at 21-22, 27, 28).
The plaintiff was assigned Mr. Abdalla as his public defender (id. at 22). He met with the plaintiff and read him his discovery for No. 2016A2320400682 and 2016A2320400683 (id.). Despite this, the plaintiff contends that Mr. Abdalla was not actually working for him (id.). The plaintiff further contends that he has not been granted new trials in his prior criminal actions at this time, but he is gathering evidence to request that new trials be granted in his criminal cases (id. at 22-23). The plaintiff reiterates that when he was placed in the home incarceration program (“HIP”), Sentinel extorted the plaintiff for excessive fees and used dirty drug testing materials in an attempt to frame the plaintiff for violating the terms of HIP when he refused extortion requests (id. at 23). The plaintiff was also required in October 2016 to submit an additional DNA sample for personal use by a judge (id.). The plaintiff hired Mr. Chambers to represent him regarding the illegal acts by Sentinel (id.). Mr. Chambers, along with Mr. Sarratt, tried to force the plaintiff to sign a settlement in September 2016, but the plaintiff refused (id. at 23, 28). Charges brought by the plaintiff regarding the actions of Mr. Chambers and Mr. Sarratt were swept under the rug (id.). The plaintiff further contends that Simpsonville Municipal Judges have a bias against him, but have presided over his cases anyways (id. at 24). He also contends that Gateway Village Apartments, a government apartment complex, extorted him for excess rent, lied about the plaintiff's name being on the lease, would not turn over video footage of the plaintiff being robbed, and allowed the maintenance man to harass the plaintiff (id. at 24, 26).
The plaintiff also asserts that he did not discover his claims until he reviewed a copy of his criminal history report in March 2020, so the statute of limitations has not yet expired (id. at 25). For injuries, the plaintiff alleges a cut inside his lip, neck pain, back pain, swollen face, swollen eyes, sore arms, and knots on his head and forehead (id. at 20). For relief, the plaintiff seeks money damages (id.).
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. Nevertheless, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, as mentioned above, instead of asserting amended claims for relief, as instructed, the plaintiff's amended complaint largely reiterates the plaintiff's prior allegations and asserts that the court misconstrued his initial allegations in the order dated April 2, 2021 (see e.g., doc. 16). In doing so, the plaintiff's amended complaint appears to abandon claims against several of the defendants (id.). Nevertheless, the undersigned will address all of the claims that could be liberally construed from the plaintiff's amended complaint.
Younger Abstention To the extent the plaintiff's complaint can be construed as asserting constitutional violations with respect to his pending state criminal prosecutions, seeking injunctive relief, the plaintiff is requesting that this court interfere with or enjoin the pending state criminal prosecution against him (see generally doc. 1). The plaintiff has two pending charges in the Greenville County General Sessions Court, including: one count of harassment 1st degree (No. 2019A2320400211) and one count of stalking (No. 2020GS2307835A). See Greenville County Public Index (enter the plaintiff's name and 2019A232040211 and 2020GS2307835A) (last visited May 18, 2021). 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 it. 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 address his asserted defenses to his pending criminal charges in the South Carolina state court. Indeed, the plaintiff has not made 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 injunctive relief based upon his pending criminal proceedings, this court should abstain from hearing this action.
As for the plaintiff's damages claims, federal courts typically stay rather than dismiss claims for money damages during the pendency of the state court proceedings. See Deakins v. Monaghan, 484 U.S. 193, 202 (1988). Nevertheless, dismissal rather than a stay is appropriate when the plaintiff's damages claims are “plainly barred” for other reasons. See Nivens v. Gilchrist, 444 F.3d 237, 248-50 (4th Cir. 2006). Here, as set forth in detail below, the plaintiff's claims (including those which fall outside the scope of Younger), are barred for other reasons; thus, they are subject to summary dismissal.
The plaintiff's complaint is barred by Heck v. Humphrey With respect to the plaintiff's accusations that his rights were violated when he was arrested and prosecuted by the defendants, his claims are currently barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that in order to recover damages for imprisonment in violation of the Constitution, the imprisonment must first be successfully challenged. The Court stated:
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87 (footnote omitted); see also Edwards v. Balisock, 520 U.S. 641 (1997) (the preclusive rule of Heck extended to § 1983 claims challenging procedural deficiencies which necessarily imply the invalidity of the judgment). This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008). As noted, judicially-noticed, publicly-available online records for the Greenville County Court of General Sessions indicate that the plaintiff pled guilty to harassment (No. 2015A2330208104), possession of a controlled substance (No. 2016A2320400682), possession with intent to distribute controlled substance (No. 2017A2320602991) in exchange for the dismissal of charges for domestic violence second degree (No. 2016A2320400681) and possession of drug paraphernalia (case No. 2016A2320400683). See Greenville County Public Index, (enter the plaintiff's name and 2015A2330208104, 2016A2320400681, 2016A2320400682, 2016A2320400683, 2017A2320602991) (last visited May 18, 2021). These charges do not indicate a favorable termination. The plaintiff's amended complaint argues that he never pled guilty to any charges and that the records have been falsified; however, he has not substantiated his allegations that the records have been falsified (doc. 16 at 15-16, 20, 25). As such, the plaintiff's claims regarding alleged illegal prosecutions in the above matters are barred by Heck at this time, because he has not received a favorable termination on these underlying state criminal charges.
The plaintiff does have a stalking charge that shows as dismissed at preliminary hearing; however, he has not made any allegations with respect to said charge in his amended complaint. See Greenville County Public Index (enter the plaintiff's name and 2018A2330203783) (last visited May 18, 2021).
The plaintiff's complaint fails to state a claim for relief Presuming that the plaintiff's claims are not barred by Younger or Heck, the plaintiff's amended complaint is still subject to summary dismissal as outlined below.
Statute of Limitations As an initial matter, the vast majority of the plaintiff's claims are barred by the statute of limitations. While a statute of limitations is not contained within the text of § 1983, the Supreme Court has determined that a state's general statute of limitations for personal injury claims applies, even if the state has different statutes of limitation for intentional torts. Owens v. Okure, 488 U.S. 235, 249-50 (1989) (noting that “we accordingly hold that where state law provides multiple statutes of limitation for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions”). South Carolina law allows three years for a plaintiff to bring a personal injury action. S.C. Code § 15-3-530(5). Therefore, the statute of limitations for § 1983 claims arising in South Carolina is three years, regardless of the underlying allegations. See Hamilton v. Middleton, C/A No. 4:02-cv-01952-23, 2003 WL 23851098, at *4 (D.S.C. June 20, 2003). Here, construing the filing date in the light most favorable to the plaintiff, the plaintiff's complaint was filed on January 5, 2021, the date the plaintiff signed his complaint. See Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to District Court). As such, the plaintiff's following claims are time-barred because they accrued more than three years prior to the commencement of this action: 2011/2015/2017 claims regarding falsified charges; 2016 claims regarding incidents while in the Detention Center and while on HIP; 2016 claims regarding wrongdoing by Mr. Chambers, Mr. Sarratt, and Mr. Abdalla; and 2015, 2016, 2017 claims against Mr. Wickensimer for preventing the plaintiff from receiving copies of orders and transcripts (see generally doc. 16). The statute of limitations for these claims ran in 2020 at the latest. The plaintiff conclusorily asserts that he was not on notice of his claims until March 2020, when he reviewed a copy of his criminal record (doc. 16 at 25). However, the majority of these claims would not have been revealed by reviewing a criminal history report, and the plaintiff was certainly on notice at the time these aggrieved actions allegedly took place against to him. Nevertheless, as outlined below, the plaintiff's amended complaint abandons claims against defendants Mr. Wickensimer, Sentinel, Corp. Neely, Corp./Sgt. Hall, Sgt. Gant, Solicitor's Office Greenville South Carolina, and Mr. Chambers (see doc. 16; see also doc. 13 at 17-18 (noting that an amended complaint replaces the original complaint and should be complete in itself (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). Moreover, as outlined below, in addition to being time-barred, the plaintiff's amended complaint also names several parties against whom relief may not be sought pursuant to § 1983.
No Personal Allegations Defendants Patrick Wilkinson, Brittany Scott, and J. Land do not appear in the plaintiff's amended complaint beyond the caption and being named as defendants (see doc. 16). Indeed, it is unclear in what capacity these defendants were involved in the plaintiff's alleged 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 Iqbal, 556 U.S. at 676 (noting that liability under § 1983 “requires personal involvement”). As such, the complaint fails to state a claim on which relief may be granted against these defendants, and they should be dismissed.
Not a State Actor
Defendants Gateway Village Apartments, John Abdalla, Esquire, and Stewart Sarratt, Esquire, are subject to summary dismissal because they were not acting under color of state law. It is well-settled that “[a]nyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). However, private conduct, no matter how discriminatory or wrongful, is not covered under § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-51 (1999). In distinguishing between state action and private action,
The judicial obligation is not only to preserv[e] an area of individual freedom by limiting the reach of federal law and avoi[d] the imposition of responsibility on a State for conduct it could not control, but also to assure that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (internal quotation marks and citations omitted). State action may be found to exist “if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotations and citations omitted).
The United States Court of Appeals for the Fourth Circuit has identified several contexts in which private action may be found to constitute state action, such as “when the state has coerced a private actor to commit an act that would be unconstitutional if done by the state”; “when the state has delegated a traditionally and exclusively public function to a private actor”; “when the state has sought to evade a clear constitutional duty through delegation to a private actor”; or “when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen.” Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993). The critical inquiry in each case is whether the private actor's conduct was fairly attributable to the state. Mentavlos v. Anderson, 249 F.3d 301, 313 (4th Cir. 2001). “[T]he ultimate resolution of whether an actor was a state actor . . . is a question of law for the court.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344 n.7 (4th Cir. 2000). Gateway Village Apartments Here, the plaintiff's complaint “includes no facts that establish such a ‘close nexus' between” this defendant's challenged actions and the state such that their actions “may be ‘fairly treated' as those of the state itself.” See Perry v. Chattem, Inc., C/A No. 7:08-cv-00106, 2008 WL 983428, at *4 (W.D. Va. Apr. 9, 2008). Likewise, there is nothing to suggest that Gateway Village Apartments, a private business, is a state actor (doc. 16 at 26). The plaintiff conclusorily contends that Gateway Village Apartments is a “government apartment complex” (doc. 16 at 26), but provides no basis for his assertion. In light of the foregoing, Gateway Village Apartments is subject to summary dismissal because it is not a state actor.
Mr. Abdalla and Mr. Sarratt Likewise, the plaintiff's claims against Mr. Abdalla and Mr. Sarratt are subject to summary dismissal because they are not state actors. The plaintiff's claims against these two defendants are based upon their representation of him during criminal charges in South Carolina state court. As noted above, It is well-settled that “[a]nyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky, 566 U.S. at 383. To determine whether state action is present, no single factor is determinative and the “totality of the circumstances” must be evaluated. See Goldstein, 218 F.3d at 341-43. However, purely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983 and the United States Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982); Mentavlos, 249 F.3d at 310. The law is well-established that appointed defense counsel are not state actors for purposes of § 1983 claims because the public defender acts not on behalf of the state; rather, the public defender “is the State's adversary.” Polk Cnty. v. Dodson, 454 U.S. 312, 323 n.13 (1981); see Mahaffey v. Sumter Cnty. Pub. Defender's Corp., C/A No. 3:06-3557-SB, 2007 WL 3001675, at *4 (D.S.C. Oct. 9, 2007) (“[T]he Sumter County Public Defender's Corp. did not act under color of state law and is entitled to summary dismissal.”); see also Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980) (finding no state action under § 1983, even where the plaintiff's attorney was court-appointed). As such, Mr. Sarratt and Mr. Abdalla are also entitled to summary dismissal because they are not state actors.
Abandoned Claims It appears that the plaintiff has abandoned several of his claims and defendants - as his amended complaint omits the following defendants: Maj. Styles, Greenville County Department of Public Safety Police Department, Mr. Chambers, Ms. Hopper, City of Simpsonville, Simpsonville Police Department, Simpsonville Municipal Court/City Hall, State of South Carolina, City of Greenville, County of Greenville, Judge Miller, Greenville Health Department, Public Defender's Office 13th Circuit, Solicitor's Office Greenville South Carolina, Paul B. Wickensimer, and Greenville County Detention Center (see doc. 16). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 13 at 17-18 (citing Young, 238 F.3d at 572)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims/defendants. To the extent the plaintiff did not intend to abandon these claims/defendants, for the reasons set forth in the court's prior order, the claims would still be subject to summary dismissal (see doc. 13 at 6-17).
RECOMMENDATION
By order issued April 2, 2021, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to 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. 13). Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated April 2, 2021 (id). Therefore, the undersigned recommends that the district court decline to give the plaintiff further leave to amend his complaint and dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.