Opinion
C. A. 6:21-cv-03738-JD-KFM
02-15-2022
Genuine Truth Banner, Plaintiff, v. Joel Anderson, Joseph Stines, Dennis Patterson, Sr., Stacey E. Richardson, Dr. Stephanie Skewes, Brandon Byrd, Terrie Wallace, Jana Hollis, Sherry Mackey, Audrey Daniels-Moore, Clinton Parker, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The plaintiff, a state prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on November 15, 2021 (doc. 1). By Order filed January 13, 2022, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 12). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 12). On January 31, 1 2022, the plaintiff's amended complaint was entered on the docket (doc. 18). Because the plaintiff's amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
With his amended complaint, the plaintiff filed a motion for extension of time in case his amended complaint arrived after the deadline (doc. 17). The plaintiff's motion was granted (doc. 20).
ALLEGATIONS
This is a § 1983 action filed by the plaintiff, proceeding pro se (doc. 18). The plaintiff is a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and currently housed at Kirkland Correctional Institution (“Kirkland”) (id. at 2). The plaintiff alleges that he was placed on maximum security on April 2, 2020, based upon an incident at Lee Correctional Institution (“the Lee Incident”) (id. at 8). The plaintiff was charged in the Lee County General Sessions Court with assault/attempted murder and possession of a weapon during a violent crime (id. at 8). The plaintiff was found not guilty of the charges on October 13, 2021 (id. at 10).
Although these charges previously appeared on the public index, they appear to have been removed.
The plaintiff contends that a disciplinary hearing for the Lee Incident was not held within 21 days as required by SCDC policy (id. at 8-10). The plaintiff contends that his custody classification was then raised, and despite several review board and classification board hearings, his custody classification has not been lowered (id.). The plaintiff was provided notice of a disciplinary hearing for the Lee Incident almost a year later based upon a hearing extension the plaintiff contends was invalid (id.). The plaintiff attended a disciplinary hearing on April 23, 2021, for the Lee Incident, and the plaintiff was found not guilty, but he still was prevented from returning to a lower security classification, which affects his accrual of good credit time (id.). 2
The plaintiff contends that after he requested information regarding the charges used to justify his stay on max security, he was told that no disciplinary hearing decision had been made (id. at 9). The plaintiff contends that he has not been provided a review every 90 days of his custody status as required by SCDC policy - although he also contends that reviews of his custody status are occurring without him present, which makes them invalid (id. at 9, 14). After the plaintiff was found not guilty of the state criminal charges, he requested documentation for his custody classification, but was not provided all of the requested documentation (id. at 10). The plaintiff further contends that after he was found not guilty of the state criminal charges, a disciplinary hearing was held where, without due process, the plaintiff was found guilty of a disciplinary charge relating to the Lee Incident (id. at 11). Due to the disciplinary charge, the plaintiff was deducted 12 days of good time and sentenced to time served (id. at 11, 14-15). The plaintiff has appealed the disciplinary charge, but has not received a response (id.). The plaintiff complained to Mr. Patterson, Warden Wallace, and the grievance office about his custody status, but did not receive a response (id. at 9).
The plaintiff further contends that he complained to Warden Wallace about the strip search policy and his inability to file electronic grievances, but she did not respond (id. at 10, 13). When the plaintiff complained to Ms. Skewes and Ms. Richardson about his custody level, he was told to file complaints electronically, which he cannot do (id. at 10). He also complained to Warden Wallace regarding mail interference and denied privileges, but she did not respond (id.).
The plaintiff also contends that he and other SCDC maximum security inmates are subject to unconstitutional conditions of confinement (id. at 11). He alleges that there are no windows to the outside in the cells, that the cells are extremely cold, and he has not been provided enough food (id.). The plaintiff alleges that he has not been able to go to outside recreation because he refuses to subject himself to invasive strip searches 3 (id. at 12, 16). While in max security, the plaintiff also alleges that he is not allowed access to educational programs (id.).
The plaintiff alleges that his due process rights and rights under the United Nations Declaration of Human Rights have been violated because he has not been allowed access to recreation, educational programs, has restricted phone access, does not earn good time, and cannot utilize the canteen (id. at 11, 13). He contends that these restrictions impose an atypical and significant hardship on him (id. at 13). The plaintiff further alleges that his First Amendment rights are being violated because his mail has been mishandled and delayed and his phone time has been restricted (id.). He further contends that his rights were violated when he lost 12 good time days as a result of the disciplinary conviction (id. at 13-15). These deprivations were without due process because the plaintiff did not have a disciplinary hearing as required by SCDC policy (id. at 14-15).
The plaintiff alleges that he has been retaliated against by the defendants (id. at 15-16). He contends that his continued custody level is retaliatory because the reason for his custody level, the criminal charges, were dismissed in state court, but his custody level has still not been reduced (id.). With respect to conditions of confinement, the plaintiff alleges that he has lost weight because he is not being fed enough and that his cell is extremely cold despite heaters being run in the hallway (id. at 16-17). With respect to his mail interference claim, the plaintiff alleges that due to receiving a court order late, he has been appointed a lawyer he does not like in his petition for a writ of certiorari case (id. at 17).
The plaintiff's alleged injuries include lost weight, loss of Vitamin D, blood clots, and emotional distress (id. at 18). For relief, the plaintiff seeks money damages (id.).
STANDARD OF REVIEW
The plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 4 28 U.S.C. § 1915A(a). Thus, even though the plaintiff has prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the 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. As a pro se litigant, the plaintiff's 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 (2007) (per curiam). 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).
This complaint is filed 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, the plaintiff appears to assert claims based upon the United Nation's Universal Declaration of Human Rights; however, the Declaration does not create a private right of action. Crittington v. McFadden, C/A No. 5 3:31-cv-00314-MR, 2021 WL 5452134, at *1 n.1 (W.D. N.C. Nov. 22, 2021). As such, the plaintiff may not bring claims relating to the Declaration.
Due Process Claim
The plaintiff alleges that his Fourteenth Amendment rights were violated by the defendants because he has been kept on maximum security since the Lee Incident in 2020, as well as based upon disciplinary hearing proceedings/convictions (doc. 18 at 8-11, 13-15). To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process. See Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). First, to the extent the plaintiff seeks damages based upon his custody classification, asserting that he should not be held in maximum security, the claim is subject to dismissal because 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) (finding no constitutional right under the due process clause to a particular security classification or prison placement), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Additionally, the plaintiff's inability to earn good credit time credit on maximum security is not a protected liberty interest. See Mills v. Holmes, 95 F.Supp.3d 924, 935 (E.D. Va. 2015) (citing West v. Angelone, 165 F.3d 22 (4th Cir. 1998) (unpublished) (“Inmates have no protected liberty interest in remaining in or being assigned to a particular good conduct allowance level . . . .”); James v. Robinson, 45 F.3d 426 (4th Cir. 1994) (unpublished)).
The plaintiff's claims regarding the purported delayed and incorrectly decided disciplinary hearings likewise fail to allege a protected liberty interest. First, the plaintiff alleges that he is still appealing the disciplinary charge; thus, it is not properly before this court (see doc. 18 at 11, 14-15). Additionally, because the plaintiff alleges that twelve days of good time were improperly taken from him, he may not bring any claim relating to the disciplinary charge in this action. Federal law opens two main avenues to relief on 6 complaints related to imprisonment: a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a complaint under the Civil Rights Act, § 1983. Muhammadv. Close, 540 U.S. 749, 750 (2004); see Preiser v. Rodriguez, 411 U.S. 475, (1973) (an application seeking release from custody is an application for habeas corpus and is not an available remedy under the Civil Rights Act). “Habeas corpus, and not § 1983, is the exclusive federal remedy for state prisoners seeking actual release from confinement, ” Griffin v. Baltimore Police Dep't, 804 F.3d 692, 694-95 (4th Cir. 2015) (citing Preiser, 411 U.S. 475, 487-90), and “requests for relief turning on circumstances of confinement may be presented in a § 1983 action, ” Muhammad, 540 U.S. at 750. Here, in seeking to overturn the disciplinary conviction, the plaintiff seeks to recover the 12 days of good time credit that he lost as a result of the disciplinary charge; however, this court cannot order the return of his good time credit in this civil rights action. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (noting that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”). Even presuming the plaintiff was not seeking the return of good time credit - meaning his claim could actually be considered in this action - his claims regarding lost privileges and “living conditions” as a result of the disciplinary conviction do not provide a liberty interest to support a due process claim. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 461 (1989) (finding no liberty interest in canteen, telephone, or visitation privileges); United States v. Alkire, C/A No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr. 10, 1996) (no constitutional right to the use of a telephone while in prison); Conn v. Stolle, et al., C/A No. 1:11-cv-00758-CMH-TCB, 2011 WL 3321136, at *3 (E.D. Va. July 29, 2011) (finding no constitutional right to watch television and recognizing that prisoners do not have a direct constitutional right to visitation). Moreover, as noted by the Supreme Court, a change in a prisoner's conditions of confinement only gives rise to a federally-protected liberty interest if it “imposes atypical and 7 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483, 485 (finding no liberty interest when inmate placed in segregated confinement). Here, the plaintiff's amended complaint does not allege an atypical or significant hardship. Instead, the plaintiff's personal allegations of wrongdoing by the defendants focus on allegations that they have not responded to his grievances, or that they have wrongfully denied his grievances, but he is not constitutionally entitled to access to the grievance process. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012) (unpublished per curiam opinion) (recognizing that an inmate's access to and participation in a prison's grievance process is not constitutionally protected) (citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal involvement”). As such, the plaintiff's due process claim is subject to summary dismissal.
Conditions of Confinement Claims
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove that he was deprived of a basic human need and that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
The plaintiff's amended complaint contains a litany of vague alleged unconstitutional conditions (doc. 18 at 11-13, 16-17); however, his vague and conclusory allegations fail to plausibly state a claim for relief. See Iqbal, 556 U.S. at 678 (noting that 8 “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.”) (citing Twombly v. Bell Atl. Corp., 550 U.S. 544, 556-57 (2007)). As recognized by the Supreme Court, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. Further, the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Iqbal, 556 U.S. at 678). Nevertheless, to the extent specific conditions can be construed, the undersigned will address them in turn.
First, as noted above, the plaintiff does not have a constitutional right to access the canteen, use the telephone, or be served the food of his choice. See Ky. Dep't of Corr. v. Thompson, 490 U.S. at 461 (finding no liberty interest in canteen, telephone, or visitation privileges); Alkire, 1996 WL 166400, at *1 (no constitutional right to the use of a telephone while in prison). Additionally, while the Supreme Court has found that the Eighth Amendment imposes a duty on prison officials to provide inmates with “adequate food, ” Farmer, 511 U.S. at 832, the Fourth Circuit has noted that only an extreme food deprivation is actionable under the Eighth Amendment, Scinto v. Stansberry, 841 F.3d 219, 234 (4th Cir. 2016) (internal citations omitted). Here, the plaintiff conclusorily asserts that he is not being provided enough food; however, he has not plausibly alleged that the defendants acted in a sufficiently culpable manner with respect to the amount of food he is provided or his basis for the food being inadequate. Moreover, the plaintiff has not alleged an “extreme deprivation” as required by the Fourth Circuit with respect to food. See Scinto, 841 F.3d at 234.
Additionally, the law is well settled that “inmates have no constitutional right to rehabilitation or educational programs.” Garrett v. Angelone, 940 F.Supp. 933, 942 (W.D. Va. 1996), aff'd, 107 F.3d 865 (4th Cir. 1997) (citing Rhodes v. Chapman, 452 U.S. 9 337, 348 (1981) (nothing that deprivation of rehabilitation and educational programs does not violate Eighth Amendment)). Moreover, the plaintiff's allegations - that his cell window isn't to the outside so he can see the sun and that his cell is cold when he is not under the covers - fail to rise to the level of a constitutional violation. See Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Wilson, 501 U.S. at 298) (noting that the Constitution does not mandate comfortable prisons, and only deprivations which deny the minimal civilized measure of life's necessities are sufficiently grave to provide the basis of a § 1983 claim); Thompson v. Brown, C/A No. 3:11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). Indeed, “the Constitution does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981); see also Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (“[T]he ordinary discomfort accompanying prison life is part and parcel of the punishment those individuals convicted of criminal offenses endure as recompense for their criminal activity. Accordingly, only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.”).
The plaintiff also contends that his mail has been interfered with, mishandled, or delayed, by unknown SCDC “staff” (doc. 18 at 17). As an initial matter, interference with an inmate's mail may constitute a claim under § 1983, under certain circumstances. See Witherow v. Paff, 52 F.3d 264, 265 (7th Cir. 1995) (holding that prisoners possess a First Amendment right to send and receive mail). The plaintiff's claims regarding mail interference, however, do not contain sufficient factual information to state a claim for relief. To the extent the plaintiff attempts to complain about a delay or the non-receipt of mail, an 10 occasional, negligent delay or interference with personal (or legal) mail, without more, does not impose a deprivation of Constitutional proportions. See Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995); Pearson v. Simms, 345 F.Supp.2d 515, 519 (D. Md. 2003), aff'd 88 Fed.Appx. 639 (4th Cir. 2004). Moreover, the plaintiff has not alleged intentional acts of wrongdoing by any of the defendants with respect to his mail interference claim. See Iqbal, 556 U.S. at 676 (noting that “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution”).
Moreover, the plaintiff cannot assert a conditions of confinement claim based upon access to outdoor recreation - as he was provided the opportunity for recreation, but chose not to participate (see doc. 18 at 12, 16). The plaintiff also asserts that a homosexual officer told him that he enjoyed doing strip searches at least one time the plaintiff was strip searched (id.). However, “[m]ere threats or verbal abuse by prison officials, without more, do not state a cognizable claim under § 1983”. Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); Morrison v. Martin, 755 F.Supp. 683, 687 (E.C. N.C. 1990), aff'd917 F.2d 1302 (4th Cir. 1990) (noting that “[w]ords by themselves do not state a constitutional claim, without regard to their nature” (internal citation omitted)). Moreover, the Supreme Court has recognized that the requirement that maximum security inmates undergo regular strip searches fails to raise a constitutional claim. Bell v. Wolfish, 441 U.S. 520, 559 (1979) (finding that body cavity searches are reasonable because in prisons the “(s)muggling of money, drugs, weapons, and other contraband is all too common an occurrence”).
It appears that the plaintiff seeks supervisory liability against at least some of the defendants with respect to his conditions of confinement claims (see doc. 18). However, they are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that 11 each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that “Section 1983 will not support a claim based on a respondeat superior theory of liability” (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was “so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;” and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013). Here, the plaintiff alleges that he informed the supervisory defendants about the unconstitutional conditions via grievances and complaints, but the defendants either failed to respond to his complaints or allegedly wrongfully denied requests made by the plaintiff (see generally doc. 18). These claims rely upon the plaintiff's allegation that the defendants wrongfully denied his grievances; however, as noted above, it is well-settled that an inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor, 483 Fed.Appx. at 858; Adams, 40 F.3d at 75. As such, to the extent the plaintiff seeks supervisory liability against any of the defendants, the plaintiff's amended complaint fails to state a supervisory liability claim against the defendants. See Ford v. Stirling, C. A. No. 2:17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C. A. No. 0:10-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010). Thus, in light of the foregoing, the plaintiff's condition of confinement claim is subject to summary dismissal.
Denial of Access to the Courts Claim
The plaintiff alleges that his mail has been restricted, and liberally construed, that the mail restrictions have denied him access to the courts (doc. 18 at 17). A claim for denial of access to the courts must be pleaded with specificity. Cochran v. Morris, 73 F.3d 12 1310, 1317 (4th Cir. 1996). In any event, to maintain a valid constitutional claim for denial of access to the courts, a prisoner must show actual injury. Cochran, 73 F.3d at 1317; see Lewis, 518 U.S. at 349. The plaintiff has not plausibly alleged actual injury - and being dissatisfied with his appointed counsel in another case does not meet the standard of actual injury. Moreover, the filings in this case - and in others filed within this district by the plaintiff belie his claim that he lacks access to the court due to problems with his mail. See Banner v. Spartanburg Cnty, et al., C/A No. 7:21-cv-01576-JD-KFM, 2021 WL 4227547 (D.S.C. Sept. 16, 2021) (dismissed, appeal pending); Banner v. Cnty. of Spartanburg, C/A No. 7:21-cv-00743-JD-KFM, 2021 WL 4227475 (D.S.C. Sept. 16, 2021) (dismissed, appeal pending); Banner v. Tisdale, et al., C/A No. 6:21-cv-03456-JD-KFM (D.S.C.) (pending). Accordingly, the plaintiff's denial of access to the courts claim is subject to dismissal.
Retaliation Claim
The plaintiff's retaliation claim, even as amended, is subject to summary dismissal. Where a plaintiff alleges that an act was taken in response to the exercise of a constitutionally protected right, the plaintiff must allege that (1) he engaged in “protected First Amendment activity, (2) [the defendant] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and [the defendant's] conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). Because conduct that “tends to chill the exercise of constitutional rights might not itself deprive such rights, ” a plaintiff can plausibly allege a retaliation claim without alleging an actual deprivation of his First Amendment rights. Constantine, 411 F.3d at 500. With respect to causation, a plaintiff must plausibly allege knowledge by the defendant of a plaintiff's protected activity as well as that the retaliation took place within some “temporal proximity” of that activity. Id. at 501; see Germain v. Bishop, C/A No. TDC-15-1421, 2018 WL 1453336, at *14 (D. Md. Mar. 23, 2018). A prisoner must present more than conclusory 13 accusations of retaliation, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996).
Here, even as amended, the plaintiff's retaliation claim is unclear. For example, the plaintiff's description of his protected activity is nonsensical:
Protected 1st amendment activity: In the process of me freely assembling in a manner that is typical in relation to the ordinary incidents of prison life, I was, on 4/2/20, accused of assaulting/attempting to murder an SCDC employee falsely.(doc. 18 at 15). Nevertheless, liberally construing the plaintiff's allegations, he may assert that he has engaged in protected activity by filing grievances and complaints. However, the plaintiff's amended complaint still fails to allege which defendants were involved in or have knowledge of his protected activity. Moreover, there are no allegations providing a plausible causal link between the protected activity and alleged retaliatory act(s) - and the plaintiff has provided no facts showing the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran, 73 F.3d at 1318. As such, the plaintiff's retaliation claim is also subject to dismissal.
Abandoned Claim
It appears that the plaintiff has abandoned his equal protection claim (see doc. 18). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 12 at 12 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claim. To the extent the plaintiff did not intend to abandon the equal protection claim, for the reasons set forth in the court's prior order, this claim would still be subject to summary dismissal (see doc. 12 at 7). 14
RECOMMENDATION
By order issued January 13, 2022, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated January 13, 2022 (doc. 12). Therefore, the undersigned recommends that the district court decline to give the plaintiff further leave to amend his complaint and dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED. 15
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 committees 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
250 East North Street, Room 2300
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). 16