Opinion
C/A No. 8:19-cv-02484-JMC-JDA
12-17-2019
David Richard Walker, Jr., Plaintiff, v. Amy Jolly, Annie Rumler, Chretha Kelley, Director Stirling, All Unknown Law Librarians at Level III of SCDC, Defendants.
REPORT AND RECOMMENDATION
David Richard Walker, Jr., ("Plaintiff"), proceeding pro se and in forma pauperis, brought this civil action pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections ("SCDC") and is currently incarcerated at the Perry Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
BACKGROUND
Plaintiff commenced this action by filing a Complaint, which was entered on September 3, 2019. [Doc. 1.] By Order dated September 17, 2019, the Court notified Plaintiff that this action was subject to summary dismissal. [Doc. 11.] The Court, however, noted that Plaintiff may be able to cure the deficiencies of his Complaint and granted Plaintiff twenty-one days to amend his Complaint. [Id. at 11-12.] Plaintiff was specifically warned as follows:
If Plaintiff fails to file an amended complaint that corrects those deficiencies [identified in the Court's Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915A (explaining that, as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).[Id. at 12.] On October 11, 2019, Plaintiff filed a motion, which the Court construed as a motion for an extension of time within which to file an amended complaint. [Doc. 14.] The Court granted the motion and Plaintiff was given additional time to cure the deficiencies of his original Complaint. [Doc. 18.] On November 25, 2019, Plaintiff filed an affidavit, which was also entered in each of Plaintiff's other pending cases in this Court. [Doc. 26.] Nevertheless, Plaintiff did not file an amended complaint and has failed to cure the deficiencies identified by the Court.
The undersigned has carefully reviewed Plaintiff's affidavit. While the affidavit is difficult to decipher and is mostly gibberish, the undersigned concludes that the document is simply an attempt to rehash many of the allegations made in Plaintiff's various actions filed in this Court.
Plaintiff filed this civil rights action alleging that Defendants have denied him access to legal materials and supply items and have denied him access to courts, government offices, and government officials all in violation of the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. [Doc. 1 at 4.] Plaintiff contends that Defendants' conduct occurred from 2016 through 2019 within the following SCDC correctional institutions: Broad River, Lieber, Lee, Kirkland, McCormick, and Perry. [Id. at 5.] Plaintiff contends that he has been denied essential items and accommodations by Defendants. [Id.] Specifically, Plaintiff contends that Defendants have denied him access to any and all courts, both federal and state, and that he has been denied the opportunity to petition any government official for a redress of grievances. [Id. at 6.] Plaintiff contends that Defendants have denied him the right to litigate his claims in violation of his civil rights. [Id.] Plaintiff contends that, due to his status as a prisoner, Defendants have a duty and obligation to ensure Plaintiff's ability and right to petition the government for grievances and litigate his claims. [Id.] Plaintiff contends that he has endured constant denials and violations, including neglect, harm, and inhumane/unsafe care and treatment, and that he has been denied accommodation to ensure his right to petition the government and litigate his claims. [Id. at 6-7.] Plaintiff contends that Defendants have been made aware of Plaintiff's issues and claims, but have refused to accommodate Plaintiff and have interfered with his grievances and litigation. [Id. at 7.] Plaintiff has been held in constant isolation within restrictive housing units and protective custody. [Id.] Plaintiff has relied upon the law library's book-borrowing program, but constantly has been denied essential law books by unknown law librarians. [Id.] Plaintiff contends that he has a fundamental civil right to have access to state and federal government offices and officials and state and federal courts under the First, Fifth, and Fourteenth Amendments to the United States Constitution. [Id. at 7-8.] Plaintiff asserts that he has the right to petition the government for redress of grievances and has the right to due process of law. [Id. at 8.] Plaintiff contends that Defendants have diminished and interfered with these rights. [Id.] Defendants' interference with these rights has caused serious injury to Plaintiff, including bodily injury, civil injury, personal injury, and wrongful and unlawful imprisonment. [Id. at 9.] Plaintiff claims he has filed over fourteen civil cases and several appeals, many of which remain pending. [Id.] Plaintiff contends that he has endured constant dismissal of his cases due to the denials, interference, and deprivations by Defendants, including the denial of essential items, accommodations, and access to courts and library materials, all in violation of his civil rights. [Id.] Plaintiff has requested access to a law library, law library books through the Book Borrow Program, WestLaw Corrections Connections, a typewriter, photocopying equipment, and other essential items, such as envelopes, papers, pens, and postage. [Id. at 10.] Defendants constantly have denied Plaintiff's access to such items. [Id.] Plaintiff contends that Defendants have denied him access to electronic methods for preparing his grievances and litigation documents, such as access to a tablet with word processing software. [Id.]
For his injuries, Plaintiff contends that Defendants have interfered with and deprived Plaintiff of his access to state and federal government, causing him bodily injury, civil injury, and personal injury, including injury to his life, liberty, and integrity, wrongful and unlawful imprisonment, and interference with Plaintiff's appeals, petitions, grievances, and correspondences to redress such claims. [Id. at 11.] For his relief, Plaintiff requests that the Court enter a preliminary and permanent injunction, ordering Defendants to cease all interferences with and deprivations to his access to state and federal governments. [Id. at 11-12.] Plaintiff also seeks compensatory damages and punitive damages. [Id. at 12.] Plaintiff also asks for an order requiring Defendants to provide Plaintiff with the items and accommodations he requests. [Id.]
STANDARD OF REVIEW
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, Plaintiff is a prisoner under the definition in 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, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended 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.
Because Plaintiff is a pro se litigant, his 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, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). "A claim has 'facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
The Complaint should be dismissed
Plaintiff filed this action 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).
Liberally construed, the Complaint appears to assert a claim for denial of access to courts and a claim for denial of access to legal materials. However, these claims are without merit because Plaintiff fails to allege any facts as to any individual Defendant and fails to allege facts to support a cognizable claim for relief.
Defendants are entitled to dismissal
Defendants are entitled to summary dismissal as Plaintiff's bare allegations against them fail to state a claim for relief. A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). As noted, although the court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it "failed to contain any factual allegations tending to support his bare assertion"). While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003). This Court is not required to develop tangential claims from scant assertions in the complaint. See Beaudett, 775 F.2d at 1278.
Here, the Complaint does not make any specific factual allegations against any named Defendants in the body of the Complaint. In a § 1983 action, a plaintiff must plead facts indicating that a defendant acted personally in the alleged deprivation of his constitutional rights. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); Faltas v. South Carolina, No. 3:11-cv-3077-TLW-SVH, 2012 WL 988105, at *4 (D.S.C. Jan. 27, 2012), Report and Recommendation adopted by 2012 WL 988083 (D.S.C. Mar. 22, 2012), aff'd, 489 F. App'x 720 (4th Cir. 2012). When a complaint contains no personal allegations against a defendant, that defendant is properly dismissed. See, e.g., Reaves v. Richardson, No. 4:09-cv-820-TLW-SVH, 2011 WL 2119318, at *6 (D.S.C. Mar. 1, 2011) ("without such personal involvement, there can be no liability under section 1983"), Report and Recommendation adopted by 2011 WL 2112100 (D.S.C. May 27, 2011); Fox v. Drew, No. 8:12-cv-421-MGL, 2013 WL 4776706, at *11 (D.S.C. Sept. 4, 2013) (explaining that a defendant is liable in his individual capacity only for his personal wrongdoing), aff'd, 563 F. App'x 279 (4th Cir. 2014). In the absence of substantive allegations of personal wrongdoing against the named Defendants, the Court is unable to liberally construe any type of plausible cause of action arising from the Complaint against them. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996) (explaining statute allowing dismissal of in forma pauperis claims encompasses complaints that are either legally or factually baseless); Weller, 901 F.2d at 389 n.2 (finding dismissal proper where there were no allegations to support claim); Odom v. Trident Hosp. Dir., No. 5:17-cv-02540-RMG-KDW, 2017 WL 6016407, at *4 (D.S.C. Nov. 1, 2017), Report and Recommendation adopted by 2017 WL 5992088 (D.S.C. Dec. 4, 2017).
Here, Plaintiff provides insufficient factual allegations to state a § 1983 claim against any of the individual named Defendants. The Complaint's general statements that Plaintiff's constitutional rights of access to the courts and access to legal materials have been violated by Defendants, absent specific personal allegations against the Defendants, fail to state a claim under § 1983. Accordingly, these Defendants are entitled to summary dismissal. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) ("Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed."); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (finding the complaint was subject to summary dismissal where plaintiff made no factual allegations against the named defendants within the body of the pleading).
Plaintiff's claims are subject to dismissal
Further, the Complaint as a whole is subject to summary dismissal as Plaintiff has failed to state a claim for relief that is plausible. As noted, it appears that Plaintiff asserts a claim for denial of access to the courts and a claim for denial of access to a law library and legal materials. However, Plaintiff has failed to allege facts to support either claim, and both claims are subject to dismissal as a matter of law.
"It is well established that prisoners have a constitutional right of access to the courts." Warfield v. Harford Cty. Det. Ctr., No. 18-cv-3240-PWG, 2019 WL 3718956, at *2 (D. Md. Aug. 6, 2019). "[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries." Bounds v. Smith, 430 U.S. 817, 828 (1977). "A prisoner claiming a Bounds violation must show: (i) that shortcomings in the prison's library or legal assistance program hindered his efforts to attack his sentence, directly or collaterally, or to challenge the conditions of his confinement; and (ii) that he was actually injured as a result of these shortcomings." Hinojos v. Byars, No. 2:13-cv-1900-JFA-WWD, 2014 WL 3687400, at *8 (D.S.C. July 23, 2014). To state a claim for denial of court access, a plaintiff must allege that he has been prejudiced in pursuing non-frivolous litigation concerning his conviction or prison conditions. Lewis v. Casey, 518 U.S. 343, 350-55 (1996). The right of access to the courts is the "right to bring to court a grievance that the inmate wished to present," and violations of that right occur only when an inmate is "hindered [in] his efforts to pursue a legal claim." Id. An inmate cannot rely on conclusory allegations; instead, he must identify with specificity an actual injury resulting from official conduct. Cochran, 73 F.3d at 1317; see also White, 886 F.2d at 723-24. A plaintiff must demonstrate that the defendants caused actual injury, such as the late filing of a court document or the dismissal of an otherwise meritorious claim. Lewis, 518 U.S. at 353-54. The actual-injury requirement is not satisfied by just any type of frustrated legal claim, but instead requires that the inmate demonstrate that his "non-frivolous" civil rights legal claim has been "frustrated" or "impeded." Id. at 353-55.
Here, Plaintiff has made no allegations of any real injury and/or prejudice that he actually suffered as a result of the alleged inadequate access to legal materials or access to the courts. See id. at 350-55 (explaining a plaintiff must allege actual injury resulting from an allegedly inadequate jail library in order to state a claim under § 1983). "Actual injury cannot be established merely by conclusory statements that the inmate would have fared better in litigation had he or she had more or better access to legal research materials." Jones v. Lexington Cty. Det. Ctr., 586 F. Supp. 2d 444, 448 (D.S.C. 2008). Plaintiff has not identified any specific claim that he was unable to litigate because of the alleged denial of access to a law library or access to the courts. Thus, Plaintiff's conclusory allegations are insufficient to show an actual injury. In the absence of an alleged actual injury and prejudice to a constitutional right resulting from Plaintiff's lack of access to legal materials or access to the courts, Plaintiff's Complaint fails to state a claim against Defendants on which this Court may grant relief. See, e.g., Payne v. Lucas, No. 6:11-cv-01767-DCN-KFM, 2012 WL 988137, at *1 (D.S.C. Mar. 2, 2012), Report and Recommendation adopted by 2012 WL 988133 (D.S.C. Mar. 22, 2012); Crawford v. Nash, No. 4:08-cv-4092-GRA-TER, 2009 WL 580348, at *3 (D.S.C. Mar. 5, 2009).
Plaintiff simply alleges that he has been denied access to legal materials and access to the court, but he fails to allege any specific facts as to how any case has been adversely affected due to his denial of access to the court or to legal materials. Furthermore, the undersigned takes judicial notice that Plaintiff has filed at least nineteen actions in this Court, of which several remain pending. Plaintiff's filings in his prior actions, his cases currently pending before this Court, and his cases filed in other federal and state courts belie any claim of injury from an alleged denial of access to the courts or access to legal materials. Regardless of Plaintiff's apparent ability to access the court in his many cases filed in federal and state courts, Plaintiff has utterly failed to identify in the instant Complaint any specific instances in which any Defendant has denied him access to the court or legal materials, beyond making bald assertions and conclusory allegations. Therefore, Plaintiff has failed to state a cognizable claim.
It is appropriate for this District Court to take judicial notice of Plaintiff's prior cases. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining 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 'the most frequent use of judicial notice is in noticing the content of court records.'").
To date, Plaintiff has filed ten cases in this calendar year at case numbers 8:19-cv-0597, 8:19-cv-0646, 8:19-cv-0688, 8:19-cv-0787, 8:19-cv-0857, 8:19-cv-2458, 8:19-cv-2484, 8:19-cv-2558, 8:19-cv-3043, and 8:19-cv-3084. Additionally, Plaintiff previously filed actions in this Court at case numbers 8:14-cv-00996, 3:15-cv-03536, 3:15-cv-03709, 3:15-cv-03776, 3:16-cv-00814, 3:16-cv-00815, 3:16-cv-00816, 3:16-cv-00817, and 3:18-cv-00322. Likewise, Plaintiff has filed similar actions in other federal district courts, such as the United States District Court for the Middle District of Tennessee, and in the South Carolina state courts. For example, Plaintiff has filed actions in the Richland County Court of Common Pleas at case numbers 2018-cp-40-02176, 2018-cp-40-04838, 2018-cp-40-05175, 2019-cp-40-01060, 2019-cp-40-01181, and 2019-cp-40-01226; in the Greenville County Court of Common Pleas at case numbers 2018-cp-23-02834, 2018-NI-23-00071, and 2019-cp-23-01421; in the Lexington County Court of Common Pleas at case number 2019-cp-32-00801; in the Dorchester County Court of Common Pleas at case numbers 2019-cp-18-01379, 2019-cp-18-01988, 2019-cp-18-01989, 2019-cp-18-01990; and in the Lee County Court of Common Pleas at case number 2019-cp-31-00059. Many of Plaintiff's cases filed in the state courts involve similar allegations to those he has made in his cases filed in this Court.
Dismissal of this Action should be deemed a "Strike"
As noted, the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e ("PLRA"), requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify "cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). Further, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean, 566 F.3d at 393. The "three strikes" rule, codified at 28 U.S.C. § 1915(g), provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). The PLRA's "three strikes" rule was enacted to bar prisoners who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)). To avoid application of 28 U.S.C. § 1915(g), a prisoner may prepay the filing fee in full. Nevertheless, all civil lawsuits brought by prisoners seeking relief from a governmental entity, officer, or employee are subject to screening pursuant to 28 U.S.C. § 1915A, even those lawsuits where the full filing fee is paid at the time of filing. See Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006).
A district court shall dismiss an action at any time if it determines that the action is frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B). Because district courts are not required to entertain duplicative or redundant lawsuits, they may dismiss them as frivolous or malicious pursuant to § 1915(e). See Aziz v. Burrows, 976 F.2d 1158, 1158 (8th Cir. 1992) (finding that § 1915(d), the precursor to § 1915(e), allowed a district court to dismiss a complaint that was duplicative of another pending action brought by same party). "'[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous.'" Paul v. De Holczer, No. 3:15-cv-2178-CMC-PJG, 2015 WL 4545974, at *6 (D.S.C. July 28, 2015) (holding that "the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency"), aff'd 631 F. App'x 197 (4th Cir. Feb. 4, 2016); Cottle v. Bell, 229 F.3d 1142, 2000 WL 1144623, at *1 (4th Cir. Aug.14, 2000) ("Because district courts are not required to entertain duplicative lawsuits, they may dismiss such suits as frivolous pursuant to § 1915(e)."). Generally, lawsuits are duplicative if the parties, issues, and available relief are not different from each other. See Georgia v. McCarthy, 833 F.3d 1317, 1321 (11th Cir. 2016).
As noted, Plaintiff is a frequent filer, having filed ten cases in this year alone. Plaintiff has made similar claims in his prior actions to those he makes in this case. For example, Plaintiff has asserted claims for access to the courts and filed numerous motions related to access to legal materials in a number of his cases, including Walker v. Miles, No. 8:14-cv-996, Walker v. Koon, No. 8:19-cv-688, Walker v. Dudek, No. 8:19-cv-2558, Walker v. McCree, No. 8:19-cv-2458, Walker v. Jolly, No. 8:19-cv-2484, and Walker v. Stirling, No. 8:19-cv-597. Because the present action is duplicative of Plaintiff's other actions, it should be dismissed as frivolous. See Reynolds v. Third Circuit Pub. Defs. Office, No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, at *5 (D.S.C. Feb. 7, 2018), Report and Recommendation adopted by 2018 WL 1124592 (D.S.C. Mar. 1, 2018) (summarily dismissing duplicate case as frivolous); Davis v. Colleton Cty. Mem'l Library, No. 2:17-cv-2948-PMD-MGB, 2018 WL 2170338, at *2-3 (D.S.C. Apr. 12, 2018), Report and Recommendation adopted by 2018 WL 2149309 (D.S.C. May 10, 2018). Accordingly, because the Complaint is frivolous, the undersigned recommends that this case be deemed a strike for purposes of the PLRA's three strike rule.
The Motion for Preliminary Injunction should be denied
Plaintiff has filed a motion for a preliminary injunction, requesting an order from the Court granting the injunctive relief requested in the Complaint. [Doc. 3.] Because the undersigned recommends dismissal of this action, Plaintiff's motion for preliminary injunction is moot. Further, Plaintiff's motion for injunctive relief should be denied under the legal standard adopted by the Fourth Circuit Court of Appeals and the standard articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 607 F.3d 355 (4th Cir. 2010) (per curiam) ("On further consideration, we now reissue Parts I and II of our earlier opinion in this case, 575 F.3d at 345-347, stating the facts and articulating the standard for the issuance of preliminary injunctions."). Under this standard, Plaintiff must demonstrate "'[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.'" Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009) (quoting Winter, 555 U.S. at 20). All four requirements must be satisfied. Id. Here, Plaintiff has not made a showing to demonstrate that any of the four factors weigh in his favor. Moreover, because the undersigned finds that the Complaint fails to state a claim upon which relief may be granted, Plaintiff is unlikely to succeed on the merits. Accordingly, the motion should be denied.
CONCLUSION AND RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 and § 1915A without leave to amend and without issuance and service of process. Further, the undersigned recommends that this action be deemed a STRIKE as it is frivolous and malicious. Finally, the undersigned recommends that Plaintiff's motion [Doc. 3] for preliminary injunction be DENIED.
As noted above, Plaintiff was directed to file an amended complaint to cure the deficiencies noted by the Court in its Order dated September 17, 2019. [Doc. 11.] Plaintiff has not filed an amended complaint or attempted to cure the deficiencies in his original filing. Accordingly, the undersigned recommends dismissal without leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice); Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 17, 2019
Greenville, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
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
300 East Washington Street, Room 239
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).