Opinion
C. A. 4:23-2477-JD-TER
09-28-2023
Reashee Lamar Thompson, #334873, Plaintiff, v. J. Ashford, Lt. D. Hastie, and Lt. S. Simon, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III., UNITED STATES MAGISTRATE JUDGE.
This is a civil action filed by a state prisoner, 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); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 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); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's 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 frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
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 may be 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 commenced this action by filing just a letter(ECF No. 1) and had named no defendants; it was unclear what claims Plaintiff was attempting or intending to pursue. Thus, the court ordered Plaintiff to complete a civil rights complaint form, name defendants, and state claims against those defendants. (ECF No. 7) Plaintiff sent a complaint form with named defendants, which was more vague in allegations and claims than the prior letter. (ECF No. 1-4).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983 “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) (internal quotation and citation omitted). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Under § 1983, a plaintiff must establish 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 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
As to the complaint's question regarding what constitutional rights violation Plaintiff was pursuing, Plaintiff answered: “SCDC worker violated my rights as an inmate.” (ECF No. 1-4 at 4). Plaintiff alleges the event occurred at 5:11 p.m. on March 10, 2023. “The three officers violated my right by [taking] a[n] inmate[‘s] word over [mine]... They also slander my name.” (ECF No. 1-4 at 5-6). Injuries listed are unable to sleep at night because he cannot get his mind “right.” (ECF No. 1-4 at 6). Under the question for relief requested, Plaintiff requests the court “handle” each individual. (ECF No. 1-4 at 6). Later, Plaintiff requests monetary damages. (ECF No. 1-4 at 7).
To the extent the complaint form's allegations are generally against “officers,” the Fourth Circuit Court of Appeals recently found that generalized, conclusory, and collective allegations do not plausibly allege claims on the part of each Defendant. Langford v. Joyner, 62 F.4th 122, 125 (4th Cir. 2023)(finding Plaintiff failed to state a claim upon which relief could be granted) “Collective
allegations against all Defendants without identifying how each individual Defendant personally interacted with [Plaintiff] or was responsible for the denial of his [] rights” fails to give “fair notice to that defendant of the Plaintiff's claim and the underlying factual support.” Id.(emphasis in original). Plaintiff's collective, general allegations here have failed to state a claim upon which relief could be granted.
Liberally construing Plaintiff's first filed letter, Plaintiff appears to be alleging he was accused of an inmate assault, had a disciplinary hearing, the dsciplinary charge was dismissed, and Plaintiff was placed back on the yard. (ECF No. 1 at 2-3). Plaintiff alleges he did not want to be anywhere near the false accuser inmate anymore. Plaintiff alleges he was placed three doors down from his false accuser despite voicing his preference. (ECF No. 1 at 3). Plaintiff alleges the inmate then verbally threatened him. (ECF No. 1 at 4). Plaintiff alleges he told Defendants he did not want to be placed around his accuser. (ECF No. 1 at 4). Plaintiff's repeated, main point of contention is “taking another inmate's words over mine,” which is not a violation of constitutional rights. (ECF Nos. 1, 1-4). Even liberally construing, Plaintiff has failed to state a claim for failure to protect against any of the Defendants. A failure to protect claim has two elements: 1) establish he suffered a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” and 2) show that the Defendant had a sufficiently culpable state of mind, specifically a deliberate indifference to inmate health or safety. Nelson v. Henthorn, 677 Fed.Appx. 823, 826 (4th Cir. 2017). Plaintiff's allegations are in regards to words only as a threat from another inmate and Plaintiff being falsely accused of assaulting the other inmate himself. Plaintiff's allegations here do not support either element of a claim for failure to protect against the named Defendants.
As to Plaintiff's allegations of “slander” (ECF No. 1-4 at 7), Plaintiff never alleges Defendants personally said anything, only that an inmate had falsely accused him of an assault. To the extent Plaintiff is attempting to pursue claims for defamation, libel, or slander under § 1983, there is no federal right of action for such claims. DeShaney v. Winnebago Cnty. Dep't of Soc. Serv., 489 U.S. 189, 200-203 (1989); Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988)). Nothing in the First Amendment creates a private right of action for invasion of privacy; reputation is not a liberty or property interest sufficient to invoke due process protections. Garrett v. Aube, No. 8:18-cv-1449-MGL-JDA, 2018 WL 3628848, at *3 (D.S.C. May 31, 2018), report and recommendation adopted, 2018 WL 3619823 (D.S.C. July 30, 2018)). To the extent Plaintiff is attempting to bring a state law action, the court should decline to exercise supplemental jurisdiction.
This action is subject to summary dismissal as Plaintiff has failed to state a claim upon which relief could be granted.
RECOMMENDATION
It is recommended that the District Court dismiss this action with prejudice under § 1915(e) and § 1915A and without issuance and service of process.
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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 2317
Florence, South Carolina 29503
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).