Opinion
C/A No. 8:20-cv-02010-MGL-JDA
06-25-2020
Mikie Marcell Caldwell, Plaintiff, v. George Torres, Not Sure Which Federal Agent, Sumter County Detention Center, Torres Attorney, Defendants.
REPORT AND RECOMMENDATION
Mikie Marcell Caldwell ("Plaintiff"), proceeding pro se, brings this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights (a "Bivens claim"). Plaintiff is a detainee at the Florence County Detention Center and is proceeding in this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the pleadings for relief and submit findings and recommendations to the District Court.
Plaintiff commenced this action by filing a Complaint. [Doc. 1.] After reviewing the Complaint, the undersigned issued an Order notifying Plaintiff that this action was subject to summary dismissal unless he corrected the pleading deficiencies present in his original Complaint and authorizing him to file an amended complaint. [Doc. 9.] In response, Plaintiff filed an Amended Complaint. [Doc. 17.] The Court notes that Plaintiff makes nearly identical allegations in his Amended Complaint as he did in his original Complaint. The undersigned further notes that an amended complaint replaces all prior complaints 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 . . . ."). Accordingly, in this Report and Recommendation, the undersigned considers only the allegations in the Amended Complaint. Having reviewed the Amended Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal for the reasons below.
BACKGROUND
Plaintiff makes the following allegations in his Amended Complaint. [Doc. 11.] The crux of Plaintiff's claim is that "another person and Government Official[s] are doing all illegal activity to place [him] into prison." [Id. at 14.] Plaintiff alleges that he and two other individuals were involved in wrongful action by the Defendants in December 2019 at the Sumter County Detention Center. [Id. at 9.] According to Plaintiff, Defendant Torres, an inmate who was facing significant prison time, told his attorney and government officials that Plaintiff and the other individuals were plotting to harm a confidential source. [Id.] The government agents gave Torres a listening device to attempt to record conversations with Plaintiff and the other individuals about their plot to harm someone. [Id.] Plaintiff contends that this action placed his family in danger. [Id.] Plaintiff also contends that Torres wrote numerous statements, making up lies and false conversations in order to get released early. [Id.] Plaintiff asserts that the government agents never received approval from people at Sumter County Detention Center to use the listening device. [Id.] Plaintiff alleges that Torres was not searched and could have come into the jail with a weapon or chemical to harm people in the jail. [Id.] Plaintiff alleges that another individual found the listening device. [Id.] Plaintiff contends that Torres's attorney allowed him to give false statements and confessions in violation of Plaintiff's rights. [Id. at 10.]
For his relief, Plaintiff asserts that he is "[n]ot sure what type of relief to ask for" regarding his claim about "how another person and Government official are doing all illegal activity to place me into prison." [Id. at 14.]
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which authorizes the District Court to dismiss a case if it is satisfied 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). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and "seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). Thus, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended 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.
Because Plaintiff is a pro se litigant, his 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, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
Although the Court must liberally construe the pro se pleadings and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Amended Complaint, the Amended Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). "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.'" Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
As noted, Plaintiff brings this Bivens action against Defendants purportedly for violations of his rights under the Fifth and Fourteenth Amendments. In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violation of federal constitutional rights. 403 U.S. at 389. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). To establish a claim under Bivens, a plaintiff must allege two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 ("In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.").
Here, upon review of the allegations in the Amended Complaint and in light of the applicable law, the undersigned concludes that this case is subject to summary dismissal because Plaintiff has failed to allege facts showing that Defendants deprived him of a right secured by the Constitution and laws of the United States. Plaintiff asserts that Defendants violated his right against self-incrimination and his due process rights under the Fifth and Fourteenth Amendments. [Doc. 11 at 5.] Nevertheless, Plaintiff has failed to allege facts establishing any conduct that violated the Constitution. For example, Plaintiff has not alleged facts showing that any Defendant elicited any incriminating statement from him. An inmate's due process rights are not violated "when incriminating statements are given voluntarily by [an inmate] and the police and the informant take no action to elicit the incriminating [statements]." Shipe v. Ray, No. 7:09-cv-00454, 2010 WL 3783438, at *9 (W.D. Va. Sept. 28, 2010). Likewise, there are no facts in the Amended Complaint suggesting that Plaintiff made any statements that were recorded or that any of his statements have been used against him by federal agents. Further, Plaintiff has failed to allege facts showing that Defendants' conduct injured him in any way. See, e.g., Davis v. Hudson, 436 F. Supp. 1210, 1214 (D.S.C. 1977) (explaining that, because plaintiff failed to allege a personal injury or that defendants' misconduct caused or resulted in self-incriminatory statements or other illegally obtained evidence being used against plaintiff at trial, the complaint failed to state any claim for relief, including a claim under Bivens). Simply put, Plaintiff has failed to allege facts showing that Defendants violated his federal rights, and he has therefore failed to state a Bivens claim.
The undersigned further notes that Plaintiff's allegations also appear to name defendants who are not amenable to suit under Bivens. It is well-established that a Bivens claim is only cognizable against a federal actor. See, e.g., Fox v. Harwood, No. 1:09-cv-160MU02, 2009 WL 1117890, at *1 (W.D.N.C. Apr. 24, 2009); Graham v. Florence Cty. Det. Ctr., No. 9:19-cv-24-JMC-BM, 2019 WL 2330817, at *3 (D.S.C. Mar. 13, 2019), Report and Recommendation adopted by 2019 WL 2324715 (D.S.C. May 31, 2019). Here, for example, the Detention Center is not a amenable to suit under Bivens. "Only 'persons' may act under color of state or federal law; therefore, a defendant in a § 1983 or Bivens action must qualify as a 'person.'" Wilson v. Jackson, No. 3:14-cv-1694-JFA-PJG, 2014 WL 3496757, at *3 (D.S.C. July 14, 2014). "The Detention Center itself is only a facility or building, which cannot be sued as a 'Defendant' in a Bivens lawsuit." Williams v. Dorchester Cty. Det. Ctr., 987 F. Supp. 2d 690, 696 (D.S.C. 2013); see also Preval v. Reno, 57 F. Supp. 2d 307, 310 (E.D. Va. 1999) ("[T]he Piedmont Regional Jail is not a 'person,' and therefore not amenable to suit under 42 U.S.C. § 1983."), aff'd in part, modified in part on other grounds, vacated in part on other grounds, 203 F.3d 821 (4th Cir. 2000); 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.").
Further, Plaintiff has not identified any request for relief, other than asking to address his claims with an attorney and the Court. [Doc. 11 at 14.] While it is unclear to the Court what specific relief Plaintiff seeks, to the extent he seeks release from prison, such relief is not available in this civil rights action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating 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"); Watts v. United States, No. 8:14-cv-2659-TMC-JDA, 2014 WL 12649834, at *3 (D.S.C. Aug. 12, 2014), Report and Recommendation adopted by 2014 WL 12649835 (D.S.C. Sept. 22, 2014). Likewise, to the extent Plaintiff seeks dismissal of any pending charges against him, such relief is also not available in this action. Regardless, Plaintiff has not made any specific request for relief.
CONCLUSION AND RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court DISMISS this action pursuant to 28 U.S.C. § 1915 and § 1915A without leave to amend and without issuance and service of process.
The undersigned recommends dismissal without further leave to amend because any attempt to cure the deficiencies in the Amended Complaint would be futile for the reasons stated herein. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015). Additionally, Plaintiff has already had an opportunity to amend his pleadings, and he has failed to cure the deficiencies of his original Complaint.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge June 25, 2020
Greenville, 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
300 East Washington Street, Room 239
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).