Opinion
C. A. 4:22-12-TMC-TER
03-01-2022
Demetrius Alexander Brown, #51104, Plaintiff, v. Sumter County Commissioner, Sheriff Anthony Dennis, Chief Gardner, Director Ray, Major Lumpkin, Lt. Martin, Lt. McMillan, Sgt. Alston Det. Bonner, Sr. Cpl. Thompson Sr. Cpl. Howell, Sr. Cpl. Glisson Linda McCreary, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a pretrial detainee, 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 January 14, 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. (ECF No. 7). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 10); however, some deficiencies persist and the action is subject to partial summary dismissal.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges his claims are under the due process and equal protection clauses of the Fourteenth Amendment. (ECF No. 10 at 7).
Plaintiff alleges he is denied access to the courts by not having a law library or adequate assistance from persons trained in the law as a pretrial detainee. (ECF No. 10 at 12-14). Plaintiff alleges at times he has not been able to present his claims adequately or is wasting the court's time for failing to state a claim in other cases. (ECF No. 10 at 14-18). Plaintiff also alleges he asked for more legal supplies like an entire pad of paper, instead of individual sheets, and was denied (ECF No. 10 at 18-19). As to Plaintiff's allegations of denial of access to law library and “adequate assistance from persons trained in the law,” Plaintiff fails to state a claim. An allegation of lack of a law library may not be a constitutional violation if the prisoner is provided with an attorney. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (citing Bounds v. Smith, 430 U.S. 817 (1977)). Plaintiff has an attorney in his current criminal case and is awaiting trial. Further, Plaintiff is held as a detainee in a local detention center; the Fourth Circuit Court of Appeals has held that local jails, designed for temporary detainment, are generally not required to have a law library. Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987). To the extent Plaintiff alleges a lack of postage and paper, the court's records belies Plaintiff's assertions as Plaintiff has regularly filed multiple pages, filings, motions, responses, and actions with this court. See Nos. 4:21-cv-4053, 4:21-cv-3513, 4:21-cv-3327, 4:21-cv-3176, 3:21-cv-2405, 4:21-cv-1234, 3:21-cv-999, 4:21-cv-670. As to Plaintiff's ability to look up/research cases by request at the detention center, Plaintiff's own motions and Plaintiff's response to summary judgment motions in other served cases belie this allegation as there are multiple citations and quotations of cases. See docket entries in No. 4:21-cv-1234-TMC-TER, No. 4:21-cv-0670-TMC-TER. Plaintiff has failed to state a claim for denial of access to courts.
Public records show Plaintiff is awaiting trial on several charges, including murder, and is represented by attorneys Deborah and Robert Butcher who have made filings as recently as November 2021 in Plaintiff's state criminal case.
Plaintiff alleges in April 2021 his cell was searched and he was strip searched. (ECF No. 10 at 21-23). Strip searches of pretrial detainees implicate the Fourth and Fourteenth Amendments to the United States Constitution. In Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012), the United States Supreme Court upheld strip searches of pretrial detainees, regardless of the charged offense, that involved a close visual inspection of the detainee while undressed. Id. at 323-24, 339; see also Smart v. Cty. of Howard, No. CV TDC-17-3701, 2019 WL 982509, at *2 (D. Md. Feb. 28, 2019)(granting Fed. R. Civ. Proc. R. 12(b)(6) motion as to pretrial detainee strip search). Persons lawfully arrested on probable cause and detained lose right of privacy from routine searches of cavities of their bodies and their jail cells as do convicted felons. Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992)(citing Bell v. Wolfish, 441 U.S. 520, 559-560 (1979); Hudson v. Palmer, 468 U.S. 517, 530 (1984)). Plaintiff has failed to state a claim upon which relief could be granted as to these searches.
Plaintiff alleges after the searches, Defendant Alston squeezed the cuffs tighter on his left wrist. (ECF No. 10 at 24). Plaintiff also alleges Defendant Alston stated that Plaintiff was on PC custody because he was snitching by filing PREA complaints and lawsuits. Plaintiff alleges this was retaliation. (ECF No. 10 at 29). Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendant Alston and this same day service and issuance of summons as to Defendant Alston has been authorized by separate order.
Plaintiff alleges he was not given proper notice of three disciplinary hearings from infractions in fall 2019, August 2020, and September 2020. (ECF No. 10 at 31-36). Plaintiff alleges he loss commissary privileges. (ECF No. 10 at 38). Even if Plaintiff was not given proper notice, constitutional due process rights are only at issue when the prisoner is deprived a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). Plaintiff has not pleaded any deprivations of protected liberty interests as canteen access is not a protected liberty interest. “There is simply no freestanding constitutional right to canteen privileges at all.” Bennett v. Cannon, C/A No. 2:05-2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006); Starling v. Stirling, No. CV 4:15-3636-TLW-TER, 2016 WL 4697357, at *6 (D.S.C. Aug. 2, 2016), report and recommendation adopted, 2016 WL 4613396 (D.S.C. Sept. 6, 2016).
Plaintiff regularly cites to a number of specific jail policies(i.e. the S.C. Minimum Standards for Local Detention Facilities) that he alleges Defendants violated. There are no § 1983 claims based on violations of jail policies. Section 1983 vindicates only rights protected by the Constitution or federal laws, not state laws or jail policies. Rehberg v. Paulk, 566 U.S. 356, 361, (2012); Chennault v. Mitchell, 923 F.Supp.2d 765, 781 (E.D. Va. 2013).
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 some claims.
Plaintiff has failed to state a claim upon which relief could be granted as to all Defendants named, except Defendant Alston.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Sumter County Commissioner, Dennis, Gardner, Ray, Lumpkin, Martin, McMillan, Bonner, Thompson, Howell, Glisson, and McCreary, 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 Alston.
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 dismissal of Defendants Sumter County Commissioner, Dennis, Gardner, Ray, Lumpkin, Martin, McMillan, Bonner, Thompson, Howell, Glisson, and McCreary in this case be with prejudice, as Plaintiff has had an opportunity to amend, filed an Amended Complaint, and has failed to cure deficiencies as to those Defendants.
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he 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 of Court
United States District Court
Post Office Box 2317
Florence, 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).