Opinion
C. A. 4:22-2343-SAL-TER
05-10-2023
Randy Antonio Wiley, #244942, a/k/a Randy Antonio Wiley, #1360, Plaintiff, v. Angela Garces, Dental Assistant, South Carolina Department of Corrections, 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
On August 4, 2022, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint and forewarned the Amended Complaint would wholly replace the original Complaint. (ECF No. 7). Plaintiff availed himself of the opportunity and filed an Amended Complaint; however, some deficiencies persist, and the action is subject to partial summary dismissal. (ECF No. 15).
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).
Plaintiff alleges in November 2021 he was in intense pain from his teeth and was told by medical to sign up for dental. He replied that he did and had a form. The form response from Defendant Garces was about a grooming policy and did not address Plaintiff's dental concerns. Plaintiff alleges he filled out the correct form and Garces did not help. Plaintiff had an infection in his mouth. Plaintiff could not eat solid foods. Later, the dentist said it had worsened such that an outside dentist would have to perform the work. Plaintiff alleges the dentist said it would not have ended up like that if Garces would have done something. Plaintiff had surgery in March 2022 but may have permanent nerve damage. Plaintiff alleges his mouth is still numb because Garces refused to help him. After the surgery, the prison dentist stated there was nothing else they could do. (ECF No. 15 at 7). Plaintiff stated he named SCDC because they hired Garces. (ECF No. 15 at 7). Plaintiff requets monetary damages. Plaintiff attaches medical records of the procedure, stating “extensive mesial decay” and partial bony impaction. Plaintiff states that Garces failed to see him and it caused permanent damage. (ECF No. 15 at 12). Plaintiff's allegations as to Defendant Garces are sufficient to withstand summary dismissal at this stage, and this same day service and issuance of summons as to only this Defendant has been authorized by separate order.
Plaintiff names SCDC as a defendant. SCDC is not a person for purposes of liability under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989) (“We hold that neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also McElrath v. S.C. Dep't of Corr./Golden, No. 5:13-317-MGL, 2013 WL 1874852, at *2 (D.S.C. May 3, 2013). Section 1983 makes “persons” acting under the color of law liable for Constitutional deprivations. “Persons” includes local governments whose officials commit constitutional torts “according to municipal policy, practice, or custom.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir.2000). “Persons” does not include “the State and arms of the State,” which receive sovereign immunity from the Eleventh Amendment. Howlett v. Rose, 496 U.S. 356, 365 (1990). Since SCDC is an arm of the state, and not a political subdivision or municipality, theories of municipal liability discussed in Monell v. Department of Social Services, 436 U.S. 658 (1978) have no application here. McElrath v. S.C. Dep't of Corr./Golden, No. 5:13-317-MGL, 2013 WL 1874852, at *2 (D.S.C. May 3, 2013). Specifically, the “Court's holding in Monell was limited to local government units which are not considered part of the State for Eleventh Amendment purposes ...” Quern v. Jordan, 440 U.S. 332, 338 (1979) (internal citations and quotation marks omitted). Thus, SCDC is subject to summary dismissal.
Plaintiff has been previously notified of deficiencies in the original complaint, has been given an opportunity to amend his complaint, and has availed himself of the opportunity to amend but deficiencies remain regarding one Defendant.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendant SCDC be summarily dismissed with prejudice and without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendant Garces.
As noted above, Plaintiff has been given an opportunity to amend and has filed an amended complaint. It is recommended that SCDC 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).