Opinion
C. A. 4:23-06929-BHH-TER
02-12-2024
Michael D. Gallman, #254546, Plaintiff, v. Lieutenant Johnson, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
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); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 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); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's 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 frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
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 may be 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
Plaintiff's action is subject to dismissal for failure to state a claim upon which relief can be granted. Plaintiff was already afforded an opportunity to amend his original Complaint and Plaintiff filed an Amended Complaint.
Plaintiff indicates this is a Bivens claim, but Plaintiff sues a state officer and liberally construed this is an action pursuant to 42 U.S.C. § 1983. Section 1983 “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) (internal quotation and citation omitted). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). 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 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Procedurally, Plaintiff was ordered to file an Amended Complaint. (ECF No. 6). Plaintiff was specifically informed prior named defendant Nelson would be subject to summary dismissal. As to Defendant Johnson, Plaintiff was specifically informed: “Plaintiff may have stated a claim to surpass summary dismissal as to Defendant Johnson if allegations regarding Johnson are repeated in the Amended Complaint.” (ECF No. 6). Plaintiff was also informed how filing an Amended Complaint operated, that it “replaces the original complaint and should be complete in itself.” (ECF No. 6). Plaintiff did not simply repeat the prior allegations from the original complaint as to Defendant Johnson in the Amended Complaint but substantially alteredthe claims, factual allegations, and the relief sought from the original complaint to the Amended Complaint, such that Defendant Johnson is no longer servable and is subject to summary dismissal.
Plaintiff had previously alleged First Amendment retaliation, in relation to mail, conditions, and exercise. (ECF No. 1 at 2). Plaintiff had requested monetary damages and injunctive relief in the original complaint. (ECF No. 1 at 3).
Plaintiff's Amended Complaint purports to be under the Eighth and Fourteenth Amendment and requests relief which cannot be granted. Plaintiff's request for relief is that Defendant Johnson “get time off or removed from her job” because she violated rules and regulations. (ECF No. 9 at 6). The relief requested by Plaintiff cannot be granted in a civil rights action. Cox v. Ozmint, No. 3:11-cv-3404-TMC-JRM, 2012 WL 1790308, at *2 (D.S.C. Apr. 24, 2012), report and recommendation adopted, 2012 WL 1790384 (D.S.C. May 17, 2012). This federal court cannot “reprimand” or “fire” the named Defendants. See Maxton v. Johnson, 488 F.Supp. 1030, 1032 n. 2 (D.S.C.1980) (a federal district court lacks inherent power to hire, remove, or reassign officials not within the executive control of that federal district court). Plaintiff fails to state a claim upon which the relief requested can be granted.
Plaintiff alleges generally that if any one prisoner makes a mistake, everyone pays for it, and then this causes fights and stabbings among the inmates. (ECF No. 9 at 4). Plaintiff alleges if someone has a hat on or is out of uniform, Defendant Johnson “flips like a light switch.” (ECF No. 9 at 5). Plaintiff alleges Defendant's behavior causes arguments between himself and his roommates such that he loses sleep. Plaintiff alleges as injuries lack of sleep where must take high dose mental health medications. (ECF No. 9 at 6). An inmate may set out a conditions of confinement claim by alleging that he was deprived of a basic human need which was objectively sufficiently serious and that subjectively, prison officials acted with a sufficiently culpable state of mind to expose him to those conditions. Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.1993). Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992)(abrogation as to pretrial detainees, still applicable to state prisoners). Defendant Johnson herself is not keeping him from sleep, his roommates are. Plaintiff's allegations do not rise to a level of constitutional magnitude.
Plaintiff has failed to state a claim upon which the requested relief can be granted and this action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss this action with prejudice under § 1915(e) and § 1915A and without issuance and service of process.
It is recommended that this action be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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).