Opinion
C. A. 8:22-cv-0444-DCC-JDA
03-10-2022
Reggie Wade Cartee, Plaintiff, v. Chad McBride, Anderson County Sheriff's Office, Donna Marie Burns, James Robert Burns, Jr., John Doe, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Reggie Wade Cartee (“Plaintiff”) brings this civil action against the above-named Defendants purportedly under 42 U.S.C. § 1983. [Docs. 1 at 1; 1-2 at 4.] Plaintiff is proceeding in this action pro se and in forma pauperis under 28 U.S.C. § 1915. 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 Complaint for relief and submit findings and recommendations to the District Court. For the reasons explained below, this action is subject to summary dismissal.
BACKGROUND
Plaintiff is a pretrial detainee at the Anderson County Detention Center. [Docs. 1 at 1; 1-2 at 2, 4.] Plaintiff commenced this action by filing a handwritten complaint dated February 7, 2022. [Doc. 1.] By Order dated February 15, 2022, the undersigned directed Plaintiff to file a complaint on the standard court form and proper service documents for the named Defendants. [Doc. 7.] The Court has received Plaintiff's complaint on the standard court form, an attachment to the complaint form, and service documents, which the Clerk entered on the docket on March 9, 2022. [Docs. 1-2; 1-3; 5-1.] The Court construes Plaintiff's original handwritten pleading [Doc. 1], the standard court form [Doc. 1-2], and the attachment [Doc. 1-3] together as the Complaint filed in this matter.
The undersigned notes that Plaintiff's standard court form complaint lists only three Defendants—Chad McBride, Donna Marie Burns, and James Robert Burns Jr.—while his original handwritten complaint listed five—the three noted above as well as a John Doe Defendant and the Anderson County Sheriff's Office. [Compare Doc. 1-2 at 2-3 with Doc. 1 at 1.] Upon a review of the allegations, it appears that Defendant Chad McBride is the John Doe Defendant. [See Doc. 1 at 2.]
Plaintiff alleges that, on July 11, 2021, Defendant James Robert Burns, Jr., shot him in the back with a .38 caliber revolver. [Docs. 1 at 2; 1-2 at 5.] Plaintiff was placed in the ICU at Greenville Prisma Health. [Doc. 1 at 2.] Plaintiff contends that Defendant Donna M. Burns “instigated” the shooting by “antagoniz[ing]” her brother to shoot Plaintiff. [Id.] Plaintiff contends that the John Doe Defendant, who appears to be identified as Defendant Chad McBride, and the Anderson County Sheriff's Office were negligent in investigating the matter and for never arresting Burns for the shooting. [Id.]
For his injuries, Plaintiff alleges that a bullet went through his right arm, the back of his right breast plate, his lung, and exited out of the front of his body on the left side. [Doc. 1-2 at 6.] For his relief, Plaintiff seeks to be compensated for his medical expenses, lost wages, and pain and suffering, in the amount of $150,000 as to Defendant James Robert Burns, Jr. [Doc. 1 at 3.] Additionally, Plaintiff seeks $100,000 in damages against Defendant Donna M. Burns, as well as money damages against the remaining Defendants. [Id.]
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, even if Plaintiff had prepaid the full filing fee, this Court would still be charged with screening 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.
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, the pro se pleading remains 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).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the 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); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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
The 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) (quoting 42 U.S.C. § 1983). 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).
Defendants entitled to dismissal
As an initial matter, certain Defendants are entitled to summary dismissal because they are not “persons” who may be sued under § 1983 or because Plaintiff has failed to allege facts showing their personal involvement. It is well settled that only “persons” may act under color of state law, and, therefore, a defendant in a § 1983 action must qualify as a “person.” See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Rutland v. Dorchester Cnty. Det. Ctr., No. 8:09-cv-274-SB, 2009 WL 1704331, at *2 (D.S.C. June 17, 2009) (“A defendant in a § 1983 action must qualify as a ‘person.'”). Further, “[i]n order for an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.... Consequently, [defendants] must have had personal knowledge of and involvement in the alleged deprivation of [plaintiff]'s rights in order to be liable.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (internal quotation marks omitted). While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his Complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it “failed to contain any factual allegations tending to support his bare assertion”).
Anderson County Sheriff's Office
First, the Anderson County Sheriff's Office is subject to summary dismissal from this action because it is not a “person” subject to suit under 42 U.S.C. § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (explaining that neither the state nor its agencies is a “person” within § 1983); Ramirez v. Anderson Cnty. Sheriff's Office, No. 1:14-cv-3217-TMC-SVH, 2016 WL 4394505, at *2 (D.S.C. July 25, 2016) (explaining the sheriff's office, as an arm of the state, is not a “person” within the meaning of § 1983), Report and Recommendation adopted by 2016 WL 4266130 (D.S.C. Aug. 12, 2016). Additionally, Plaintiff provides no factual allegations against this Defendant to assert a plausible claim for relief under § 1983. Weller, 901 F.2d at 397 (noting dismissal is proper where there were no allegations against defendants); Gibson v. Foster, No. 5:17-cv-01333-JMC-KDW, 2017 WL 7355301, at *2 (D.S.C. Aug. 7, 2017), Report and Recommendation adopted by 2018 WL 690060 (D.S.C. Feb. 1, 2018) (finding summary dismissal proper where “the Complaint contains no allegations of wrongdoing by th[e] Defendant”). “Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); see also Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014). Therefore, the Anderson County Sheriff's Office is entitled to summary dismissal from this action as a party.
Defendants James Robert Burns, Jr., and Donna Marie Burns
Defendants James Robert Burns, Jr., and Donna Marie Burns are entitled to summary dismissal because they are not state actors for purposes of this § 1983 action. As noted, in order to state a § 1983 claim, Plaintiff must allege that he was deprived of a constitutional right by a person acting under the color of state law. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). A person acts under color of state law when he has “exercised power possessed by virtue of state law and made possible only because [the] wrongdoer is clothed with authority of state law.” Pruitt v. Pernell, 360 F.Supp.2d 738, 743 (E.D. N.C. 2005), aff'd, 173 Fed.Appx. 298 (4th Cir. 2006).
Plaintiff identifies Defendant James Robert Burns, Jr., as his uncle and Defendant Donna Marie Burns as his mother. [Doc. 1 at 2.] However, Plaintiff has not alleged facts showing that either of these two Defendants were persons acting under color of state law. Instead, their actions constitute purely private conduct. “A § 1983 claim cannot be premised on purely private conduct, no matter how unlawful that conduct may be.” Wiggins v. 11 Kew Garden Ct., 497 Fed.Appx. 262, 263 (4th Cir. 2012); see also Peirce v. Bryant, No. 4:14-cv-2927-BHH, 2015 WL 5474803, at *2 (D.S.C. Sept. 17, 2015) (explaining that “purely private conduct no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under Section 1983”). Accordingly, Plaintiff's claims against these two Defendants are subject to dismissal from this § 1983 action for lack of jurisdiction on the basis that these Defendants were not state actors.
To the extent Plaintiff's allegations may be construed as asserting state law claims against these two Defendants, any such claims would also subject to summary dismissal for lack of jurisdiction.
Plaintiff's claims are subject to dismissal
Further, Plaintiff's Complaint as a whole is subject to dismissal because his allegations fail to state a claim for relief that is cognizable under § 1983. Critically, Plaintiff has not identified the violation of any right secured by the Constitution or laws of the United States. Instead, Plaintiff appears to assert state law claims for personal injury and negligence. [Doc. 1 at 3 (alleging Defendants McBride, John Doe, and Anderson County Sheriff's Office were negligent and that Defendants James and Donna Burns are responsible for his injuries because James Burns shot him).]
However, the law is well settled that state law tort claims are not actionable under § 1983. See, e.g., Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard—a showing of mere negligence will not meet it.”); Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995) (“[N]egligent deprivations of life, liberty, or property are not actionable under 42 U.S.C. § 1983.”); Ruefly v. Landon, 825 F.2d 792, 793 (4th Cir. 1987) (“Mere negligent conduct . . . does not constitute a violation of the eighth amendment's prohibition against cruel and unusual punishment.”). “A state law tort is not actionable as a claim under § 1983 on its own.” Warthen v. Midgett, No. 2:16-cv-00931-DCN-MGB, 2017 WL 9250328, at *5 (D.S.C. Jan. 26, 2017), Report and Recommendation adopted by 2017 WL 1190869 (D.S.C. Mar. 31, 2017). Likewise, “[n]egligent police failures to investigate do not violate the Fourteenth Amendment.” Hines v. Johnson, No. 1:19-cv-515, 2020 WL 1516397, at *6 (M.D. N.C. Mar. 30, 2020). Thus, because Plaintiff's claims each arise under a theory of negligence or other state tort, his claims fail to state a claim under § 1983 as a matter of law.
Further, because the Court concludes that Plaintiff has failed to state a federal law claim under 42 U.S.C. § 1983, any state law claim is subject to summary dismissal because the Court would lack jurisdiction over it. Without any federal question claim, the Court could only exercise jurisdiction over Plaintiff's tort claims if the Complaint satisfied the requirements for diversity jurisdiction. However, this Court does not have diversity jurisdiction because the Complaint does not allege the required complete diversity of citizenship of the parties. See 28 U.S.C. § 1332. The Court further notes that Plaintiff's state law claims could be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), however, if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). The Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.... [I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Here, Plaintiff's allegations concerning his tort claims present solely state law questions. Accordingly, the Court should decline to exercise supplemental jurisdiction over any state law claims presented against Defendants.
In sum, Plaintiff has failed to allege facts to state a cognizable constitutional claim, and this action is therefore subject to summary dismissal on this basis in addition to the other reasons stated above.
RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court dismiss this action without issuance and service of process.
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 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).