Opinion
C. A. 3:19-3486-MGL-TER
03-23-2021
Alfred Domenick Wright, #15710-171, a/k/a Alfred Domenick Wright, #308331, Plaintiff, v. Josh Loomis, Unknown Federal Agents, Thomas Griffin, Jr., Lexington County Detention Center, Correct Care Solutions, Unknown United States Marshals, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by Plaintiff, a federal prisoner confined in Kentucky, proceeding pro se, alleging violations of his constitutional rights against federal employees in their individual capacity under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and against others under § 1983. Pursuant to the provisions of 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 such complaints for relief and submit findings and recommendations to the district judge. 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 the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The 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 frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2) (B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
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 can 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 February 5, 2020, 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. (ECF No. 14). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 19). The deficiencies remained and the undersigned recommended partial summary dismissal on April 27, 2020. (ECF No. 35). In May 2020, Plaintiff filed objections. (ECF No. 38). On January 21, 2021, the court construed Plaintiff's objections as a Motion for Leave to Amend and granted such motion. (ECF No. 80). Plaintiff was directed to file one complete Second Amended Complaint that would replace all prior complaints and was to be complete in itself. (ECF No. 83). On March 15, 2021, Plaintiff filed a Second Amended Complaint. Deficiencies remain and some Defendants are subject to summary dismissal.
Plaintiff brings suit against federal officials/employees and as such his constitutional claims are analyzed under Bivens, which “established that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. However, federal officials cannot be sued under § 1983, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 & n.30 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988) (abrogated on other grounds in Johnson v. Jones, 515 U.S. 304 (1995)). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eighth Amendments in specific contexts are cognizable claims under the expansion of Bivens. See Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979), Crocker v. Wright, 143 Fed.Appx. 523 (4th Cir. 2005) (unpublished). Plaintiff also indicates he is pursuing § 1983 claims against non-federal defendants. Plaintiff alleges there were multiple errors in a search warrant and his resulting injury should have never taken place.
Plaintiff alleges on December 6, 2017, on his front porch, he was handcuffed naked and pulled of his porch with excessive force by Loomis and unknown agents when his right ankle got stuck and he hit the ground hard. Plaintiff alleges he was denied prompt medical attention for his resulting injuries. Plaintiff alleges as injuries his right ankle with unusual bone growths from a break that healed improperly, slipped disk in lower back, right shoulder pain, fracture of right wrist healed improperly, and lack of normal mobility. As to Defendant Griffin and Unknown United States Marshals, Plaintiff alleges “Thomas Griffin, Jr. and unknown U.S. Marshals are also under these same violations [Plaintiff's claims regarding not being seen by medical] because CCS staff claimed to be under(follow orders) of the U.S. Marshals.” Plaintiff has alleged claims in order to surpass § 1915 initial review as to Defendants Loomis, Unknown Federal Agents, Thomas Griffin Jr., and Unknown U.S. Marshals.
Plaintiff sues the Lexington County Detention Center as a named Defendant. Any county detention center named as a defendant is not a specific “person” subject to suit under a § 1983 civil rights action. In a § 1983 civil rights action, a plaintiff must sufficiently allege injury through “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a “person” acting under color of state law. 42 U.S.C. § 1983. A defendant in a § 1983 action must qualify as a “person.” Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000)(unpublished opinion). Detention Centers are buildings and not defendants amenable to suit in a § 1983 action. Plaintiff sues Correct Care Solutions as a defendant. Such Defendant is not a person and Plaintiff has failed to allege personal involvement of specific conduct. Defendants Lexington County Detention Center and Correct Care Solutions are subject to summary dismissal.
To the extent, despite the caption of this action, that Plaintiff intended to sue Director Jones by listing his name under “job or title of Defendant No. 1” and President Dominicis of CCS by listing his name under “job or title of Defendant No. 2, ” Jones and Dominicis would be subject to summary dismissal as well because Plaintiff makes no allegations of causal connection or personal involvement of them and Plaintiff has been informed on numerous occasions of deficiencies and already been given multiple opportunities to amend. In order to assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Further, it is unclear whether the President of CCS would be a state actor as required in a § 1983 action.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case with prejudice. See Brown v. Briscoe, 998 F.2d 201, 202-204 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). As noted above, it is recommended that Defendants Lexington County Detention Center and Correct Care Solutions, be summarily dismissed without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Loomis, Griffin, Unknown U.S. Marshals, and Unknown Federal Agents.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed.Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the partial dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend multiple times and has failed to fully cure deficiencies in his amended complaint.
Defendant Loomis was already served with the First Amended Complaint and is represented by counsel. Defendant Loomis was served with the Second Amended Complaint via ECF and is directed to file an answer or otherwise respond in accordance with the Federal Rules of Civil Procedure.
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).