Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

The Plaintiff, Jarode Jermaine Witherspoon, also known as Jarode J. L. Witherspoon, is a frequent filer of litigation in this Court. Proceeding pro se and in forma pauperis, he brings this action pursuant to 42 U.S.C. § 1983. At the time of the alleged actions, he was an inmate at the Kirkland Correctional Institution (KCI), part of the South Carolina Department of Corrections (SCDC), although he appears to now be housed at the Allendale Correctional Institution (ACI) of the SCDC.

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. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980).

However, even when considered pursuant to this liberal standard, for the reasons set forth herein below this case 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].

Discussion

Plaintiff originally filed a rambling, gibberish filled note (with copies of a request to SCDC staff and a grievance form attached - ECF No. 1 -2) in which he appeared to allege that he was blamed for doing things at the correctional institution that he had not done, that another inmate threatened him and directed racial slurs at him, and that there are problems regarding his custody classification. ECF No. 1. He was directed to complete, sign, and return a standard "Complaint for Violation of Civil Rights (Prisoner Complaint")" form and was specifically instructed to briefly state the facts of his claim against each Defendant and what relief he requested. ECF No. 6. See Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4th Cir. April 28, 2017) [Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal].

In response, Plaintiff filed a complaint form with attachments. ECF Nos. 1-3, 1-4. On the complaint form, in response to the question asking what federal constitutional or statutory rights Plaintiff believed were violated, Plaintiff wrote that it was "sexual act's & threat's in dangerous act's beening, touched by and homosexual nurse Mr. Joann Jones." ECF No. 1-3 at 4 [errors in original]. In response to a question asking the facts underlying Plaintiff's claim, he wrote:

No I don't think so sir, I know it's another's inmate's they'vr under age's Y.O.A.s The one I told ya'll about it's more of them sexual & sex act's and it's HIV Aid's on every prison yard's.

Sexual & sex upon Y.O.A.'s inmates DJJ overtones regarding any group's or individual's racial or ethnic background any sexual orientation. These people's don't comply with the new or with all policies, rules, and expectations. I'll settlement for $600.59,000 Dollars cause I'm trumbledtiesd mental helth bipoloer, by these people & nurse/Mr. Joann Jones, medical. I'm zone out sir please help

A plain reading the Complaint form reveals that Plaintiff has failed to state what actions he is asserting against the Defendants named in this case, as he fails to specify what actions any of the named Defendants took or failed to take that allegedly violated his constitutional or other federal rights. In fact, Plaintiff fails to mention any of the Defendants, other than Nurse Joann Jones (as noted above), in the body of the complaint form. Construed liberally, Plaintiff appears to be asserting claims relating to actions constituting sexual abuse that have been taken against certain Y.O.A. (Youthful Offender Act) inmates, rather than to any actions involving the Plaintiff. However, Plaintiff cannot assert claims on behalf of other detainees, thereby subjecting this case to dismissal. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968)[a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant]; Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981)[a prisoner cannot act as a "knight-errant" for others]. Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)[a pro se prisoner cannot be an advocate for others in a class action].

Moreover, Plaintiff's allegations are generally so incomprehensible and filled with what could only be considered by a reasonable person as unconnected, conclusory, and unsupported comments or "gibberish," that it is unclear what is to be made of them. See Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) [Noting that federal courts lack power to entertain claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit"]; see also Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2nd Cir. 1998); Adams v. Rice, 40 F.3d 72 (4th Cir. 1994) [Affirming dismissal of plaintiff's suit as frivolous where allegations were conclusory and nonsensical on their face]. In order to proceed with a claim under § 1983, a plaintiff must affirmatively show that a defendant acted personally in the deprivation of his constitutional rights; Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); and when a complaint contains no personal allegations against a defendant, that defendant is properly dismissed. See Karafiat v. O'Mally, 54 F. App'x 192, 195 (6th Cir. 2002); Curtis v. Ozmint, C/A No. 3:10-3053-CMC-JRM, 2011 WL 635302, at *4 n. 5 (D.S.C. Jan. 5, 2011), adopted by, 2011 WL 601259 (D.S.C. Feb. 11, 2011); Whaley v. Hatcher, No. 1:08CV 125-01-MU, 2008 WL 1806124, at *1 (W.D.N.C. Apr. 18, 2008).

Even if some of the named Defendants are named because they are supervisors, a § 1983 claim for supervisory liability cannot rest on the doctrine of respondeat superior. Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). Although there is a limited exception to the prohibition against imposing liability on supervisory personnel in § 1983 cases under the doctrines of respondeat superior or vicarious liability, see Slakan v. Porter, 737 F.2d 368, 370-75 (4th Cir. 1984), that exception does not operate to save Plaintiff's Complaint from dismissal for failure to state a claim against any of the Defendants here, as the Slakan exception requires factual allegations showing a "pervasive and unreasonable risk of harm from some specified source ..." coupled with allegations showing that the supervisor's "corrective inaction amounts to deliberate indifference or 'tacit authorization of the offensive [practices].'" Slakan, 737 F.2d at 373; see Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994). Plaintiff's allegations fail to meet this standard.

To the extent Plaintiff may be claiming that he should be placed in a different security level classification or transferred to a different housing unit; see ECF No. 1; prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983)[no constitutional right under the Due Process Clause to a particular security classification or prison placement]. In Sandin v. Conner, 515 U.S. 472, (1995), the United States Supreme Court held that a change in the condition of a prisoner's confinement that does not exceed the scope of the original sentence gives rise to a federally-protected liberty interest only if it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. at 483. In Sandin, the Court concluded that the plaintiff's "segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at 485. Again, Plaintiff's allegations (to the extent they can be understood) fail to meet this standard. Hence, under the analysis set forth in Sandin, Plaintiff has not shown that he has a protected liberty interest in his security or custody classification. See id. at 483-85; see also Backey v. South Carolina Dep't. of Corrs., 73 F.3d 356, 1996 WL 1737 (4th Cir. Jan. 3, 1996)[allegations of wrongful placement in administrative segregation do not involve the kind of significant or atypical hardship necessary to invoke due process rights]; Joseph v. Gillespie, 73 F.3d 357, 1995 WL 756280 (4th Cir. Dec. 21, 1995)["Administrative segregation is not an 'atypical and significant hardship' relative to the ordinary incidents of prison life that would give rise to a liberty interest protected by any procedure."]; Reffritt v. Nixon, 917 F. Supp. 409, 412 (E.D.Va. 1996)[plaintiff has no protected interest in remaining in or being released into general population], aff'd, 121 F.3d 699 (4th Cir. 1997).

Plaintiff may also be attempting to assert that the Defendants have not followed certain SCDC policies or rules. However, such allegations do not state a constitutional claim. See Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992); cf. Johnson v. S.C. Dep't of Corrs., No. 06-2062, 2007 WL 904826, at * 12 (D.S.C. Mar. 21, 2007)[The plaintiff's allegation that defendants did not "follow their own policies or procedures, standing alone, does not amount to a constitutional violation."](citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)[if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue]. Additionally, to the extent that Plaintiff may be attempting to obtain injunctive relief, it appears that such claims against this Defendant are moot, as Plaintiff has now been transferred from KCI (where it appears the Defendants work or are inmates) to ACI. 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. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007)); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991)[The transfer of a prisoner renders moot his claims for injunctive and declaratory relief.]. Mootness is a jurisdictional question and thus may be raised sua sponte by a federal court at any stage of proceedings. North Carolina v. Rice, 404 U.S. 244, 246 (1971).

Defendants Matthews, Baxter, and "Mental Health Inmates" are also all entitled to dismissal as party Defendants because Plaintiff's fellow inmates are not state officials, and therefore do not act under color of state law for purposes of being a proper defendant in a § 1983 claim except in limited circumstances. See, e.g., Mueller v. Schnick, 210 F.3d 375 (7th Cir. Feb, 24, 2000)[Table] [inmate who broke plaintiff's jaw could not be sued under § 1983 because the plaintiff did not allege that the defendant acted under color of state law or was involved in a conspiracy with state actors], cert. denied, 531 U.S. 833 (2000); Jenkins v. Illinois Dep't of Corrs., No. 96C3064, 1996 WL 296572 (N.D.Ill. May 31, 1996)[inmate not directly suable under §1983 because inmate was not a state actor and there was no indication that his alleged conduct was inextricably intertwined with that of prison officials]. For an individual to act under color of law, there must be evidence of a concerted effort between a state actor and that individual sufficient to attribute the actions of that individual to the State. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152(1970). As Plaintiff fails to state such, his claims against the inmates should be dismissed. McGraw v. Zeleand, No. 91-7589, 1991 WL 274535 (E.D. Pa. Dec. 17, 1991)[dismissing complaint against inmate because he was not a state actor and could not be sued under § 1983].

Additionally, Defendant KCI is entitled to summary dismissal because courts have routinely held that inanimate objects such as buildings, facilities, and grounds do not act under color of state law, and are not "persons" subject to suit under § 1983. See Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969)[California Adult Authority and San Quentin Prison not "person[s]" subject to suit under 42 U.S.C. § 1983]; Nelson v. Lexington Cnty. Det. Ctr., C/A No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26, 2011) [Finding that a detention center, as a building and not a person, was not amenable to suit under § 1983]; Brooks v. Pembroke City Jail, 722 F. Supp. 1294, 1301(E.D.N.C. 1989)["Claims under § 1983 are directed at 'persons' and the jail is not a person amenable to suit."]. Similarly, the Defendants "Medical" & "CIS Program" are entitled to summary dismissal because Plaintiff appears to be referring to (unnamed) groups of people employed in the medical department or the CIS Program, and groups of people are not amenable to suit under § 1983. See Harden v. Green, 27 F. App'x 173, 178 (4th Cir. 2001)[finding that the medical department of a prison is not a person pursuant to § 1983]; Dalton v. South Carolina Dep't of Corr., C/A No. 8:09-260-CMC-BHH, 2009 WL 823931, at *2 (D.S.C. March 26, 2009)[dismissing the medical staff of SCDC and Prison Health Services as defendants because they were not persons]; Barnes v. Baskerville Corr. Cen. Med. Staff, No. 3:07CV 195, 2008 WL 2564779 (E.D.Va. June 25, 2008)[ ["Plaintiff's allegations that unspecified prison personnel violated his rights does not adequately state a § 1983 claim."].

With respect to the remaining Defendants, as employees of the SCDC, Defendants Kim Jones, Sgt. Harris, Associate Warden Lane, Nurse Joann Jones, and Nurse Gah Gah enjoy Eleventh Amendment immunity from suit in their official capacities as to any claims for monetary damages. 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. 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. Push, 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).

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. Rather, the South Carolina Tort Claims Act 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).

Additionally, as previously noted (see n. 2, supra), Plaintiff (who, as noted, is a frequent filer of litigation in this Court) already has a case pending in this court against Nurse Jones as well as other SCDC employees in which he asserts claims that the food he is served is making him sick (pain, vomiting, and blood in his urine and feces), that medical personnel have refused to help him with his medical problems, and that Nurse Jones has sexually assaulted him. See Witherspoon v. Marshall, No. 9:16-3867-MGL-BM (D.S.C.). Hence, to the extent that Plaintiff is attempting to bring claims in this case against Jones concerning an alleged sexual assault, or concerning the food he is served or the medical care he receives, these issues are already being addressed in that other case, such that these duplicate claims are frivolous and subject to dismissal on that basis. See Cottle v. Bell, No. 00-6367, 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)"]; Aziz v. Burrows, 976 F.2d 1158 (8th Cir.1992)["[D]istrict courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party."]. Plaintiff can raise any additional arguments he may have relating to these claims or seek to amend his pending case (No. 9:16-3867-MGL-BM) concerning these issues. Therefore, in the interests of judicial economy and efficiency, Plaintiff's Complaint is subject to dismissal on this ground as well. See Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) ["The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient."].

Finally, it is noted that Plaintiff has also failed to bring his case into proper form. By Order dated April 3, 2017, Plaintiff was given an opportunity to provide the necessary information and paperwork, to include an application to proceed in forma pauperis (or to pay the filing fee) and a Financial Certificate, a properly completed and revised complaint form, and forms necessary to effect service, to bring the case into proper form for evaluation and possible service of process. ECF No. 6. Plaintiff was further specifically warned that failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. See, e.g., Brockington, 2017 WL 1531633 [Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May 25, 2017) [same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017) [same]. Plaintiff thereafter sent in some partially completed documents, but failed to provide a completed and signed Financial Certificate, submitted only partially completed documents for service, and (as discussed above) failed to submit a complaint which properly stated claims against all the named Defendants. Thus, in the alternative, it is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989). cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084(1990) [holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion].

Motion to Proceed IFP

Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO 240)] which is construed as a Motion for Leave to Proceed in forma pauperis (IFP). See 28 U.S.C. § 1915(a)(1), (2). However, as noted, he has failed to submit a completed Financial Certificate. As Plaintiff has failed to provide all information necessary to evaluate his motion to proceed IFP (ECF No. 11), it is recommended that his motion for IFP be denied without prejudice.

Recommendation

Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint without prejudice and without issuance and service of process. It is also recommended that his motion to proceed IFP (ECF No. 11) be denied without prejudice.

Plaintiff's attention is directed to the important notice on the next page.

/s/_________

Bristow Marchant

United States Magistrate Judge July 14, 2017
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).