Opinion
C/A No. 4:18-1506-DCC-TER
07-17-2018
Grover Wendell Beverly, Jr., #274366, Plaintiff, v. Gregory Washington, Lisa Young, Michael Stephan, Defendants.
Report and Recommendation
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).
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 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 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 June 6, 2018, the court by order provided:
NOTICE CONCERNING AMENDMENT(ECF No. 6).
Plaintiff failed to appropriately answer questions on page 5 and 6 of the Complaint regarding: "What are the facts underlying your claim(s)? (For example: What happened to you? Who did what? Was anyone else involved? Who else saw what happened?)" and regarding "If you sustained injuries related to the events alleged above, described your injuries and state what medical treatment, if any you required and did or did not receive."
Based upon the foregoing lack of information in the complaint, the plaintiff's complaint, as currently filed, is subject to summary dismissal as it fails to state a claim upon which relief may be granted against the defendants. The plaintiff may attempt to correct the deficiencies in his complaint identified above by filing an amended complaint within 21 days of this order, along with any appropriate service documents(as directed above). Plaintiff is reminded that an amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.") (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) ("A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case . . . ."). If the plaintiff files an amended complaint, the undersigned will conduct screening of the amended complaint pursuant to 28 U.S.C. § 1915A. If the plaintiff fails to file an amended complaint or fails to cure the deficiencies identified above, the court will recommend to the district court that the claims be dismissed.
On June 20, 2018, Plaintiff filed an Amended Complaint, which included s deficiencies as the original complaint. (ECF No. 9). The deficiencies identified to be corrected were: "failed to appropriately answer questions on page 5 and 6 of the Complaint regarding: 'What are the facts underlying your claim(s)? (For example: What happened to you? Who did what? Was anyone else involved? Who else saw what happened?)' and regarding 'If you sustained injuries related to the events alleged above, described your injuries and state what medical treatment, if any you required and did or did not receive.' " (ECF No. 6).
Plaintiff's Amended Complaint states for the question of "What are the facts underlying your claim(s)? (For example: What happened to you? Who did what? Was anyone else involved? Who else saw what happened?": "'Tequan Brown-witness'... Each Defendant violated 4th and 14th Const. Amend. Rights." (ECF No. 9 at 5). While three defendants, who are the Warden, the Associate Warden, and a Captain, are named in the caption, the Amended Complaint contains no allegations of who did what to Plaintiff.
The Complaint in this case fails to state a plausible claim against the named defendants. Rule 8 of the Federal Rules of Civil Procedure requires that complaints contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose behind Rule 8 is "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted). Further, the plaintiff is obligated to provide "more than labels and conclusions[;] a formulaic recitation of the elements of a cause of action will not do ..." Id. Even though a pro se plaintiff's pleadings are to be liberally construed, a pro se complaint must still contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Id. at 555, 570; see also Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 252 (4th Cir. 2005).
"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. Defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved." Twombly, 550 U.S. at 565 n. 10. Complaints should contain facts in regard to who did what to whom and when. Id.
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 the color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
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).
The 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).
The Complaint does not indicate any personal involvement by any specifically named defendant in what occurrence related to alleged Fourth and Fourteenth Amendment violations. Accordingly, Plaintiff fails to state a claim for which relief can be granted.
Plaintiff has been previously notified of his deficiency, has been given an opportunity to amend his complaint, and has availed himself of that opportunity. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993); see also Grady v. White, No. 16-7722, 2017 WL 1437235 (4th Cir. April 24, 2017)(dismissing without remanding to district court because district court previously afforded Plaintiff the chance to amend his complaint). Recently, in three unpublished cases, 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 recent Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend, has amended, and still has failed to state a claim upon which relief could be granted.
Further, in addressing Rule 15 amendment in a postjudgment-motion context recently, the Fourth Circuit cited Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) for support that a district court is not required to issue a definitive ruling before a dismissal with prejudice. Abdul-Mumit, et al v. Alexandria Hyundai, LLC, et al, No. 17-1587, 2018 WL 3405474, *5 (4th Cir. July 13, 2018)(published) Regarding the holding in Abdul-Mumit, the Fourth Circuit stated: "Faced with such resolute adherence to deficient complaints, the district court's decision to dismiss with prejudice was well within its discretion under the facts of this case." Abdul-Mumit, 2018 WL 3405474, *6. Review under 28 U.S.C. § 1915(e)(2)(B)(ii) concerning whether a plaintiff fails to state a claim upon which relief can be granted is similar to review under Rule 12(b)(6). Rule 12(b)(6) dismissals, unless otherwise stated, are dismissals with prejudice. See Fed. R. Civ. Proc. R. 41; Carter v. Norfolk Cmty. Hosp. Ass'n, Inc., 761 F.2d 970, 974 (4th Cir. 1985). A complaint may be amended once, without the court's permission within the requirements of Rule 15(a). Fed. R. Civ. Proc. R. 15(a)(1). Where a defect in a complaint could possibly be cured by an amendment and an amendment would not be futile, notice and an opportunity to amend once must be given and such notice and opportunity would comport with constitutional due process and access to court concerns. See Curley, 246 F.3d at 1281-84; Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999)(if the court cannot conclude amendment would be futile, "the better practice is to allow at least one amendment")(citing 5A Wright & Miller, Federal Practice and Procedure § 1357, at 360-67 (2d ed. 1990). In Abdul-Mumit, the Fourth Circuit found Plaintiff was given opportunities to amend and the district court did not abuse its discretion when it dismissed the complaint with prejudice. Abdul-Mumit, 2018 WL 3405474 at *6; see also Dietz v. Bouldin, 136 S.Ct. 1885, 1892 (2016)("district courts have the inherent authority to manage their dockets").
Rule 41(b) sets forth the default rule of "with prejudice," for dismissals grounded in Rule 12(b)(6), but Rule 41 gives the district court the discretion to "otherwise specif[y]" that dismissal is without prejudice. Payne v. Brake, 439 F.3d 198, 204 (4th Cir. 2006). If a court desires to specify that a dismissal for failure to state a claim upon which relief can be granted is without prejudice, then the court's order must explicitly state that the dismissal is without prejudice and provide "clear reasons explaining why this approach was appropriate." Id. at 204. This approach would be reviewable by the appellate court under an abuse of discretion standard. Id.
Plaintiff here has been given notice and an opportunity to cure complaint deficiencies by amendment and Plaintiff, even with his Amended Complaint, failed to cure the deficiencies. As such, in accordance with the above cited cases, the undersigned recommends that the court, exercising its discretion to follow the operation of the default disposition of with prejudice, in the circumstances in this case, dismiss the Amended Complaint with prejudice for failure to state a claim.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge July 17, 2018
Florence, 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
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).