Opinion
C. A. 8:23-cv-02316-RBH-JDA
01-23-2024
Clarence Silvester Gregory, Plaintiff, v. South Carolina Department of Corrections, Martyna Tanaisha Green, Shankeia Dickerson, Taunjanese Nicole Megget, Anthony Tishiro Inabinett, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Clarence Silvester Gregory (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action under 42 U.S.C. § 1983 alleging that Defendants violated his rights under the United States Constitution and that the South Carolina Department of Corrections (“SCDC”) violated the South Carolina Tort Claims Act (“SCTCA”), SC Code §§ 15-78010, et seq. Plaintiff is an inmate in the custody of SCDC and is presently incarcerated at the Broad River Correctional Institution (“BRCI”).
Plaintiff's original Complaint, First Amended Complaint, and Second Amended Complaint each named different Defendants. Plaintiff's Second Amended Complaint, addressed herein, names the following Defendants: SCDC, Taunjanese Nicole Megget, Anthony Tishiro Inabinett, Ramirez Romero, and Marquista Tucker. SCDC appears to be named as a Defendant only under the SCTCA and not under 42 U.S.C. § 1983.
The undersigned notes that Plaintiff previously filed a civil action in this Court at case number 7:20-cv-4257-TLW-JDA against various tobacco companies, which remains pending at this time.
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 and submit findings and recommendations to the District Court.
Presently before the Court for review is Plaintiff's motion for leave to file a Second Amended Complaint. [Doc. 27.] For the reasons below, the undersigned concludes that the Court should deny Plaintiff's motion to file a Second Amended Complaint and dismiss this action for failing to state a claim.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a civil rights Complaint along with various supporting documents and an affidavit. [Docs. 1; 1-2; 1-3.] Upon review, the undersigned concluded that the Complaint failed to comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. [Doc. 8 at 3.] Accordingly, by Order dated June 21, 2023, the undersigned gave Plaintiff an opportunity to file an amended complaint to cure the deficiencies of his original Complaint. [ Id. at 6-7.] Plaintiff was warned as follows:
If Plaintiff fails to file an amended complaint that corrects those deficiencies identified [by the Court in its Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915.[Id. at 8.] In response to the Court's Order regarding amendment, Plaintiff filed an Amended Complaint, which was entered on July 10, 2023. [Doc. 10.]
On August 17, 2023, the undersigned entered a Report and Recommendation recommending that the District Court dismiss Plaintiff's federal law claims for failing to state a claim for relief and decline to exercise supplemental jurisdiction over Plaintiff's state law claim under the SCTCA (the “Report and Recommendation”). [Doc. 21.] Thereafter, Plaintiff filed objections to the Report and Recommendation [Doc. 26] and a motion for leave to file a Second Amended Complaint [Doc. 27]. Plaintiff attached to his motion a proposed Second Amended Complaint [Docs. 27-4; 27-6] along with supporting documents [Docs. 27-3; 27-5].
On November 13, 2023, the Honorable Terry L. Wooten entered an Order recommitting the matter back to the undersigned with the following instructions:
Considering Plaintiff's motions, his objections, and the proposed amended complaint, and in light of the Magistrate Judge's previous consideration of this case, the Court has conducted a de novo review of the Report. Specifically, Plaintiff's proposed second amended complaint sets forth new allegations related to those set forth in his original pleadings. As the Magistrate Judge is aware of the previously alleged facts, the appropriate legal analysis, and the history of this case, the Court concludes it is best to recommit the case back to the Magistrate Judge. Hence, the Court recommits this matter back to the Magistrate Judge to decide whether to grant Plaintiff's motion to amend.[Doc. 30 at 4.]
The undersigned 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 ....”).
Allegations from the Second Amended Complaint
Plaintiff makes the following pertinent allegations in his proposed Second Amended Complaint.
Plaintiff's proposed Second Amended Complaint consists of both a standard complaint form [Doc. 27-4] as well as a separate document containing a statement of his allegations [Doc. 27-6]. The Court construes both documents together as the Second Amended Complaint.
As to Defendant Taunjanese Nicole Meggett, Plaintiff makes the following allegations. Defendant Meggett was terminated from employment on November 16, 2021. [Doc. 27-6 at 3.] Prior to that, on October 14, 2021, in the BRCI mailroom, Plaintiff was speaking with Defendant Meggett about stimulus checks and about how the yard officers would not permit Plaintiff to place his Inmate Grievance Form (“IGF”) in the grievance box. [Id.] Plaintiff asked if Defendant Meggett would place his IGF in the grievance box. [Id.] Plaintiff explained that the grievance was about being exposed to secondhand tobacco smoke. [Id.] Defendant Meggett read the IGF and agreed to place it in the grievance box. [Id.] However, after Plaintiff left the mailroom area, Defendant Meggett “‘balled-up'” Plaintiff's IGF and placed it in the trash can. [Id.] On October 15, 2021, Plaintiff returned to the mailroom and confronted Defendant Meggett about throwing his IGF in the trash can. [Id.] Defendant Meggett stated that “there is nothing wrong with breathing tobacco smoke, that it [won't] hurt you,” and that “secondhand tobacco smoke is in every housing unit, and there is nothing that can be done about it.” [Id.] On August 23, 2023, the contraband team entered the Marion Housing Unit to conduct a cell search. [ Id. at 3-4.] The contraband team found illegal drugs hidden inside an inmate's mattress, including tobacco products, cigarettes, and other illegal drugs and substances. [Id. at 4.] That inmate admitted that those items were sold to him by Defendants Meggett and Inabinette and that he had kept them hidden for nearly two years. [Id.]
As to Defendant Anthony Tishiro Inabinette, Plaintiff makes the following allegations. On October 26, 2021, Defendant Inabinette ordered Plaintiff to report to his office. [Id.] Defendant Inabinette congratulated Plaintiff “for an outstanding job” of bringing to his attention Plaintiff's exposure to tobacco smoke in the Marion Unit. [Id.] However, Defendant Inabinette went on to explain that “‘tobacco smoke is in every Unit, and there is nothing that[] I can do about it.'” [Id.] Plaintiff insisted that he would like to file a grievance and Defendant Inabinette provided him with an IGF. [Id.] Plaintiff completed the IGF and Defendant Inabinette explained he would hand it to the Inmate Grievance Staff Coordinator. [Id.] However, after Plaintiff left his office, Defendant Inabinette threw Plaintiff's IGF into the trash can. [Id.] On March 9, 2023, Plaintiff learned that Defendant Inabinette “is the [main] source of trafficking tobacco, cigarettes, [methamphetamine,] and cell[]phones into” the prison. [Id.] Defendant Inabinette was terminated the following day. [Id. at 5.]
As to Defendant Ramirez Romero, Plaintiff makes the following allegations. On April 9, 2023, Defendant Romero conducted an inmate count in the Marion Housing Unit. [Id.] Defendant Romero made a comment about smelling secondhand tobacco smoke and marijuana inside the Marion Housing Unit. [Id.] Plaintiff requested an IGF and Defendant Romero gave Plaintiff one. [Id.] Plaintiff filled out the IGF and handed it to Defendant Romero and asked him to place it in the grievance box. [Id.] After Plaintiff explained to Defendant Romero what his IGF was about, Defendant Romero started laughing and stated that “‘tobacco smoke and [marijuana are] all over in every unit, just get you a spray bottle and spray it in the air, and it will disappear, it [won't] hurt you, and there is nothing can be done about it.'” [Id.] After the count time was cleared and Defendant Romero left the Marion Housing Unit, Plaintiff found his IGF ripped up in the trash. [Id.] On June 24 or 25, 2023, Plaintiff “again brought it to Defendant Romero['s] attention,” but he became angry and directed Plaintiff to stay away from him. [Id.]
As to Defendant Marquista Tucker, Plaintiff makes the following allegations. On June 24, 2023, Defendant Tucker arrived at the Marion Housing Unit and stated that it smelled like tobacco and marijuana smoke. [Id. at 5-6.] Plaintiff asked for an IGF and Defendant Tucker provided Plaintiff with one. [Id. at 6.] Plaintiff completed the IGF and handed it to Defendant Tucker and asked that she place it in the grievance box. [Id.] After Plaintiff explained to Defendant Tucker what the IGF was about, she started to laugh and stated that “‘tobacco smoke and [marijuana] smoke is in every unit on the compound, and [it's] not going to hurt you ....[J]ust live with it, it ain't gonna kill you.'” [Id.] Later, after Plaintiff left Defendant Tucker's office, he found his IGF “ripped . . . into pieces, in the trash bag, watered down.” [Id.] Later that day, Plaintiff confronted Defendant Tucker about the incident, and she laughed at Plaintiff and cussed him out. [Id.] Plaintiff learned on June 24, 2023, that Defendants Tucker, Romero, Meggett, and Inabinette “are the main ones . . . supplying Inmates with illegal drugs.” [Id.]
As to SCDC, Plaintiff makes the following allegations. Plaintiff identifies approximately 57 days over a two-year period, from October 2021 through September 2023, when he contends he was subjected to secondhand tobacco smoke. [Id. at 7.] Plaintiff alleges that SCDC knew tobacco products were smuggled into the prison, trafficked, distributed, and sold by its own corrections officers without interception. [Id.]
Based on the foregoing allegations, Plaintiff asserts the following claims. [Id. at 7-9.] For his first claim, Plaintiff contends Defendants Meggett, Inabinette, Romero, and Tucker have violated his rights under the Eighth Amendment to the United States Constitution (the “Eighth Amendment claim”). [Id. at 7.] Plaintiff contends that Defendants forced him to breathe, inhale, and otherwise be exposed to “unreasonably high levels of secondhand tobacco smoke, that created a condition of a substantial risk of serious harm” and that each Defendant knew about that risk and acted with a reckless disregard to that risk and failed to abate that risk. [Id. at 8.] Plaintiff contends that Defendants' conduct constitutes cruel and unusual punishment in violation of the Eighth Amendment. [Id.]
For his second claim, Plaintiff contends SCDC violated the SCTCA (the “SCTCA claim”). [Id.] Plaintiff contends that SCDC owes Plaintiff a duty to exercise reasonable care to prevent and protect Plaintiff from any potential, obvious, and pervasive harm and dangers while he is in the custody of SCDC. [Id.] Plaintiff contends that SCDC failed to exercise a reasonable duty of care to Plaintiff by failing to comply with its statutorily obligated duties, resulting in injury to Plaintiff. [Id. at 9.]
For his relief, Plaintiff seeks money damages. [Id.; Doc. 27-4 at 6.]
STANDARD OF REVIEW
Pro Se Filings
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute 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 he “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). This statute charges the Court 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). 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).
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 his pleadings, a 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).
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). As noted, although the Court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); 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”). Thus, although a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
Amendment of Pleadings
A party may amend its pleading once before trial as a matter of course, under certain circumstances, Fed.R.Civ.P. 15(a)(1), and “[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave,” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. “A district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010); see Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that leave to amend may be denied for “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”).
Although Rule 15(a) provides that “[t]he court should freely give leave when justice so requires,” Rule 16(b) provides that a court's scheduling order “may be modified only for good cause and with the judge's consent.” Thus, “when the deadline for amendment has passed, the moving party must first demonstrate good cause under Rule 16(b) before the court will consider whether an amendment is proper under Rule 15(a).” Pure Fishing, Inc. v. Normark Corp., No. 3:10-cv-2140-CMC, 2012 WL 3062683, at *1 (D.S.C. July 26, 2012), aff'd, 564 Fed.Appx. 601 (Fed. Cir. 2014). “‘[G]ood cause' means that scheduling deadlines cannot be met despite a party's diligent efforts.” Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997). Rule 16(b) “focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment” rather than “on the bad faith of the movant, or the prejudice to the opposing party.” Id. In this regard, “[c]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Id. Rather, “[u]nder Rule 16(b), the ‘good cause' inquiry focuses on whether evidence supporting the moving party's proposed amendment could not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed.” Rouse v. Byars, No. 4:13-cv-2742-BHH-TER, 2016 WL 2939609, at *3 (D.S.C. May 20, 2016).
DISCUSSION
As noted, this matter is before the undersigned for a review of Plaintiff's motion to file his Second Amended Complaint. Upon review, the undersigned concludes that amendment would be futile as Plaintiff's Second Amended Complaint, like his original Complaint and First Amended Complaint, fails to state a claim for relief as to his federal law claims. As such, Plaintiff's motion should be denied and this action should be dismissed. In reviewing Plaintiff's Second Amended Complaint, the Court will separately address Plaintiff's deliberate indifference claim under 42 U.S.C. § 1983 and his claim under the SCTCA.
The undersigned notes that Plaintiff's proposed Second Amended Complaint may be construed as a supplemental pleading because some of the events described therein occurred after Plaintiff filed his original Complaint and First Amended Complaint and his new allegations appear to supplement the allegations in his two prior pleadings. See, e.g., Tauss v. Midland States Bank, No. 5:16-cv-00168-RLV-DSC, 2017 WL 3741980, at *3 (W.D. N.C. Aug. 30, 2017) (construing the plaintiff's proposed second amended complaint as an “attempted supplemental pleading under Fed.R.Civ.P. 15(d)”). “Rule 15(d) motions are to be evaluated under the same standards used to evaluate motions to amend pleadings under Rule 15(a), which generally states that leave to amend should be freely granted when justice requires unless there are valid reasons for denying leave, such as undue delay, bad faith or futility.” Estate of Williams-Moore v. Alliance One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 644 (M.D. N.C. 2004). In any case, Plaintiff's proposed Second Amended Complaint, whether construed as an amended complaint or as a supplemental pleading, fails to cure the pleading deficiencies of his prior pleadings and this action as a whole is subject to dismissal for the reasons stated herein.
Plaintiff's Eighth Amendment Claim
Plaintiff asserts an Eighth Amendment claim against Defendants Megget, Inabinett, Romero, and Tucker 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).
The crux of Plaintiff's § 1983 claim is that his Eighth Amendment rights were violated because he was forced to breathe secondhand tobacco smoke, also called environmental tobacco smoke (“ETS”). See Tudor v. Harrison, 195 Fed.Appx. 160, 161 (4th Cir. 2006) (“ETS stands for environmental tobacco smoke, commonly called secondhand smoke.”). However, Plaintiff's deliberate indifference claim under the Eighth Amendment is subject to summary dismissal.
“The Eighth Amendment prohibits the infliction of cruel and unusual punishment on one convicted of a crime” and provides protection with respect to “the treatment a prisoner receives in prison and the conditions under which he is confined.” Shakka v. Smith, 71 F.3d 162, 165-66 (4th Cir. 1995) (citation and internal quotation marks omitted). In Farmer v. Brennan, 511 U.S. 825 (1994), the United States Supreme Court explained that a prison official violates the Eighth Amendment only when two requirements are met: (1) the alleged deprivation must be objectively “sufficiently serious,” that it results “in the denial of ‘the minimal civilized measure of life's necessities,'” and (2) the prison official must have a “‘sufficiently culpable state of mind,'” i.e., “‘deliberate indifference' to inmate health or safety.” Id. at 834 (citations and internal quotation marks omitted). The Supreme Court further determined that its standard for “deliberate indifference” would be “subjective recklessness as used in the criminal law.” Id. at 839-40. “In short, the Court concluded that ‘a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.'” Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (citing Farmer, 511 U.S. at 847). Although “prisoners do not shed all constitutional rights at the prison gate, . . . lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin, 515 U.S. at 485 (citations and internal quotation marks omitted).
In Helling v. McKinney, 509 U.S. 25 (1993), the United States Supreme Court recognized that an inmate could assert an Eighth Amendment claim by alleging that prison officials, acting with deliberate indifference, exposed the inmate “to levels of ETS that pose an unreasonable risk of serious damage to his future health.” Id. at 35. Determining whether ETS conditions violate the Eighth Amendment “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS.” Id. at 36. A plaintiff must demonstrate two objective elements—(1) that he is being exposed to unreasonably high levels of ETS, and (2) that today's society will not tolerate his exposure to this risk—and a subjective element—that the defendants are deliberately indifferent to his exposure to this risk. Id. at 35-36.
Here, Plaintiff makes only conclusory allegations about his exposure to ETS and he fails to allege facts to state a claim under Helling. Critically, Plaintiff has not alleged facts showing he was exposed to unacceptable levels of ETS or that any such exposure created a risk of harm “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. at 36. Although Plaintiff conclusorily asserts he has been exposed to ETS, he provides no substantive allegations to support such an assertion. Instead, the allegations in the Amended Complaint focus almost exclusively on the conduct of the four individual Defendants in their unsuccessful attempts to smuggle contraband, including tobacco products, into the prison. That conduct, however unlawful it might have been, does not provide a factual basis from which this Court can conclude that Plaintiff was exposed to unacceptable levels of ETS under the standard set forth in Helling.
Plaintiff's First Amended Complaint presented allegations against the following four individuals: Martyna Tanaisha Green, Shanekia Dickerson, Taunjanese Nicole Meggett, and Anthony Tishiro Inabinett. [See generally Doc. 10.] Plaintiff's Second Amended Complaint makes similar allegations as his First Amended Complaint against Meggett and Inabinett. [See Doc. 27-6 at 3-5.] However, instead of suing Green and Dickerson, Plaintiff names Romero and Tucker. [Id. at 5-6.] But his allegations against these two Defendants are similar to the other Defendants and he again asserts that the four Defendants named in the Second Amended Complaint—Meggett, Inabinett, Romero, and Tucker— “are the main ones . . . supplying Inmates with illegal drugs.” [Id. at 6.]
Importantly, Plaintiff does not allege when, where, or how often he was exposed to ETS. See Tate v. Martin, No. 1:10-cv-616, 2014 WL 1122338, at *9 (M.D. N.C. Mar. 20, 2014), aff'd, 583 Fed.Appx. 60 (4th Cir. 2014); see also Moore v. Durand, No. 22-2915, 2023 WL 4884855, at *2 (3d Cir. Aug. 1, 2023) (noting the plaintiff “has neglected to allege any specific facts sufficient to plausibly demonstrate that his levels of ETS exposure were unreasonably high” and therefore failed to state a claim under Helling). Thus, Plaintiff's vague and conclusory allegations fail to satisfy the pleading standard to state a claim for relief that is plausible. See Griffith v. State Farm Fire & Cas. Co., No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (noting that the plausibility standard requires “‘more than an unadorned, the-defendant-unlawfully-harmed-me accusation'” (quoting Iqbal, 556 U.S. at 678)); see also Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (noting that, in evaluating a complaint's allegations, the court “need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments” (internal citations and quotation marks omitted)).
The sole averment in the proposed Second Amended Complaint pertaining to Plaintiff's exposure to ETS is quoted verbatim below:
October 07, 08, 26, 27, 29, 2021, November 04, 05, 09, 11, 12, 2021; April 09, 10, 23, 2022; January 05, 06, 09, 13, 27, 2023; March 04, 05, 07, 16, 18, 25, 26, 2023; April 08, 09, 22, 2023; May 07, 20, 21, 2023; June 10, 11, 16, 17, 18, 24, 2023; July 01, 08, 15, 29, 2023; August 05, 06, 14, 15, 19, 20, 21, 22, 2023; September 02, 03, 09, 10, 2023; in according to my calendar notes; exposed to secondhand tobacco smoke; the aforesaid dates . . . show[] the times, Plaintiff [was] forced to breathe[], inhale, and be[] exposed to unreasonable high levels of secondhand tobacco smoke, and the BRCI officers, including Defendant[s Meggett, Inabinette, Romero, and Tucker,] . . . during such aforesaid times, deprived Plaintiff's right[s] . . . by knowingly provid[ing] confined and incarcerated prisoners illegal contraband items, including tobacco products, cigarettes, [methamphetamine], [marijuana], ice substances, [liquor], tobacco rolling papers, etc.[Doc. 27-4 at 5-6.] Although Plaintiff lists a number of purported dates that he was exposed to ETS, Plaintiff's cursory allegations do not present sufficient facts to rise to the level of a claim as contemplated by Helling. See Sellers v. Solomon, No. 1:16-cv-891, 2018 WL 2225014, at *2 (M.D. N.C. May 15, 2018) (noting that “sporadic and fleeting exposure to second-hand smoke [may be] unwelcome and unpleasant, [but] it [does] not constitute unreasonably high levels of ETS” (alterations in original) (internal quotation marks omitted)); Bailey v. Rife, No. 1:21-cv-00424, 2021 WL 6496561, at *8 (S.D. W.Va. Nov. 19, 2021) (finding Plaintiff's allegations of limited exposure to secondhand smoke failed to state an Eighth Amendment claim), Report and Recommendation adopted by 2022 WL 130746 (S.D. W.Va. Jan. 13, 2022).
Similarly, in the attachment to the proposed Second Amended Complaint, Plaintiff makes the following allegations as to his claim against SCDC under the SCTCA:
That on/or about[] October 07, 08, 14, 15, 26, 29, 2021, November 04, 05, 09, 11, 12, 2021; April 09, 10, 23, 2022; January 05, 06, 09, 13, 17, 27, 2023; March 04, 05, 07, 16, 18, 25, 26, 2023; April 08, 09, 22, 2023; May 07, 20, 21, 2023; June 10, 11, 16, 17, 18, 24, 25, 2023; July 01, 08, 15, 29, 2023; August 05, 06, 14, 15, 19, 20, 21, 22, 23, 2023; and September 02, 03, 09, 10, 2023, Plaintiff during these aforesaid times and dates [was] affirmatively being forced to breathe[ and] inhale and [was] exposed to unreasonably high levels of secondhand tobacco smoke.[Doc. 27-6 at 7 (emphasis omitted).] The undersigned notes that while many of the dates are consistent, Plaintiff includes inconsistent dates between his two documents.
Indeed, “Helling does not guarantee plaintiff a smoke free environment,” Mills v. Clark, 229 F.3d 1143, at *5 (4th Cir. 2000) (unpublished table decision), and “[a] prison[']s adoption of a no-smoking policy bears heavily on the deliberate indifference inquiry, and imperfect enforcement of a non-smoking policy does not rise to the level of deliberate indifference,” Johnson v. Garman, No. 7:11-cv-00177, 2011 WL 2462087, at *2 (W.D. Va. June 17, 2011). Here, Plaintiff's allegations in the Second Amended Complaint, as in his First Amended Complaint, demonstrate that prison officials at BRCI made a good faith effort to enforce the no-smoking policy, even if imperfectly, which weighs heavily against his deliberate indifference claim. See Boblett v. Angelone, 942 F.Supp. 251, 253 (W.D. Va. 1996) (noting that although the non-smoking dormitory rules were less rigidly enforced than preferred by the plaintiff, the alleged deficiencies in operating the non-smoking dorm fell “far short of establishing deliberate indifference to any serious risk posed to plaintiff by his exposure to ETS”), aff'd, 121 F.3d 697 (4th Cir. 1997); Bartlett v. Pearson, 406 F.Supp.2d 626, 632 (E.D. Va. 2005) (finding no deliberate indifference where prison created and implemented a smoking policy and made a good faith effort to enforce that policy and noting that, “although prison officials may not have been entirely successful in their efforts to enforce the facility smoking restrictions, they cannot be said to have been deliberately indifferent for that reason alone”). Indeed, Plaintiff specifically avers that “BRCI Contraband Team and the Marion Unit's Lieutenant Flemings have tried and made many efforts, but the problem is clandestine[] activities of BRCI's officers (undercover) and the Inmates are working together.” [Doc. 27-4 at 7.] Plaintiff's allegations fail to demonstrate deliberate indifference as “the existence and enforcement (even if imperfect) of a no-smoking policy forecloses deliberate indifference claims predicated on exposure to ETS.” Sellers, 2018 WL 2225014, at *3.
In his First Amended Complaint, Plaintiff alleged that SCDC “and its agencies, agents, staffs, employees, officers, [have] had a[] longtime[,] standing, well-known[,] documented and obvious and pervasive knowledge and information, posts, signs, memorand[a], newsletters, and published ads and warnings at any and all local facilities, centers and institutions and their properties that, []tobacco products of any kind ha[ve] been and continued to be ‘prohibited/banned' from [SCDC].” [Doc. 10 at 20.] Additionally, Plaintiff alleged that “[BRCI] has had a longtime standing history of [] confiscating contraband, including but not limited to, tobacco products, cigarettes, marijuana, [and] illegal drugs.” [Id.] In his Second Amended Complaint, Plaintiff alleges that the BRCI contraband team conducted a cell search on August 23, 2023, and confiscated numerous contraband items, including tobacco products [Doc. 27-6 at 3-4] and that Defendants Meggett and Inabinette were terminated from employment after they were found to be smuggling contraband into the prison [ id. at 4-5].
Further, to the extent that Plaintiff alleges Defendants should be held liable for failing to follow SCDC policies concerning tobacco use, such a claim fails under § 1983, as the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation. See Rafferty v. South Carolina, No. 3:08-cv-2020-HMH-JRM, 2008 WL 4849631, at *3 (D.S.C. Nov. 5, 2008) (dismissing the plaintiff's claim for deliberate indifference due to exposure to ETS and noting that failure to follow prison policy does not amount to a constitutional violation).
Finally, and significantly, the Second Amended Complaint again fails to allege facts showing a nexus between Defendants' actions and Plaintiff's purported exposure to ETS or his alleged injury. See, e.g., Caraballo v. Seller, No. 96-cv-0694-RSP-DS, 1998 WL 106237, at *3 (N.D.N.Y. Mar. 3, 1998) (noting that “some nexus must be alleged between the correction officers' acts (or lack thereof) and the plaintiff's resulting injury”). Although Plaintiff alleges Defendants attempted to smuggle contraband, including tobacco products, into BRCI [Doc. 27-6 at 3-6], he has failed to allege facts showing a nexus between Defendants' smuggling and any purported ETS in the prison causing harm to Plaintiff. See Iqbal, 556 U.S. at 676 (noting that liability under § 1983 “requires personal involvement”). Indeed, according to Plaintiff, at least two of the named Defendants—Meggett and Inabinette—were terminated from employment at BCRI long before most of the alleged incidents of Plaintiff's exposure to ETS. [Compare Doc. 27-6 at 3-5 (alleging Defendant Meggett was terminated on November 26, 2021, and Defendant Inabinette was terminated in March 2023) with id. at 7 (listing dates of alleged exposure to ETS).] Plaintiff cannot plausibly allege that these two Defendants were personally responsible for his alleged exposure to ETS at times when they were not even employed at BCRI.
In sum, although Plaintiff has alleged that Defendants attempted to smuggle contraband tobacco products into BRCI, he has not alleged facts showing that Defendants were deliberately indifferent to his exposure to ETS under the standard set forth in Helling or that they were personally involved in causing Plaintiff's exposure to ETS. Although Plaintiff casts his Eighth Amendment claim as one for exposure to ETS, the allegations in the Second Amended Complaint pertain mostly to the conduct of the Defendants in their responses to Plaintiff's attempts to have them file his IGFs. Such allegations, however, simply do not support a claim that Defendants were deliberately indifferent to Plaintiff's purported exposure to ETS.
Plaintiff does not appear to assert a claim that Defendants violated his rights by interfering with his access to the prison grievance procedure. In any case, even if he had, it is well settled that “inmates have no constitutional entitlement or due process interest in access to a grievance procedure. An inmate thus cannot bring a § 1983 claim alleging denial of a specific grievance process.” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017); see Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by a state.”); Doans v. Rice, No. 87-7244, 1987 WL 38813, at *1 (4th Cir. Oct. 15, 1987) (citation omitted) (“Because inmate grievance procedures are not constitutionally required in state prison systems, the failure to follow grievance procedures does not give rise to a § 1983 claim.”).
Plaintiff's SCTCA claim
Plaintiff also sues SCDC in his Second Amended Complaint, seeking relief under the SCTCA for his alleged exposure to ETS at BRCI.
“The [SCTCA], which provides the exclusive remedy in tort against [SCDC], is a limited waiver of governmental immunity.” Steinke v. S.C. Dep't of Lab., Licensing & Regul., 520 S.E.2d 142, 152 (S.C. 1999). “The [SCTCA] provides that the State, its agencies, political subdivisions, and other governmental entities are ‘liable for their torts in the same manner and to the same extent as a private individual under like circumstances,' subject to certain limitations and exemptions within the Act.” Battle v. S.C. Dep't of Corr., No. 9:19-cv-1739-TMC, 2021 WL 4167509, at *13 (D.S.C. Sept. 14, 2021) (quoting S.C. Code § 15-78-40).
The undersigned notes that, had Plaintiff's federal law claims under 28 U.S.C. § 1983 survived initial review, this Court could exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over the state law claims arising under the SCTCA. However, § 1367(a) provides the Court broad discretion in deciding whether to exercise supplemental jurisdiction over state law claims after the federal law claims are dismissed. See Johnson v. Ozmint, 456 F.Supp.2d 688, 698 (D.S.C. 2006) (“A court has wide discretion to dismiss or keep a case when it ‘has dismissed all claims over which it has original jurisdiction.'” (quoting 28 U.S.C. § 1367(c)(3))). When determining whether to exercise supplemental jurisdiction over state law claims, a district court must consider “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).
Here, because the undersigned recommends dismissal of all federal claims over which the Court has original jurisdiction, and after considering the factors discussed in Shanaghan, the undersigned concludes that the Court should decline, pursuant to 18 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over Plaintiff's purported claim under the SCTCA. Importantly, this case is still in the initial review stage, the Second Amended Complaint has not been authorized for service on Defendants, and no discovery has occurred. Further, the state courts of South Carolina have much more knowledge and experience adjudicating cases brought under the SCTCA, and the State of South Carolina has an interest in resolving Plaintiff's claims against SCDC under state law. As such, this Court should decline to exercise jurisdiction over Plaintiff's SCTCA claim so that Plaintiff may bring his claim in the appropriate state court. See Perez v. McKie, No. 4:08-cv-3026-PMD-TER, 2009 WL 960693, at *9 (D.S.C. Apr. 8, 2009) (declining to exercise supplemental jurisdiction over the plaintiff's SCTCA claims after dismissing all of the federal law claims).
Further, although SCDC “is amenable to suit in state court for tort pursuant to the [SCTCA], [it] is not amenable to suit in federal court for damages based on an alleged violation of a prisoner's constitutional rights.” Green v. SCDC, No. 9:11-cv-3407-DNC-BM, 2012 WL 360144, at *1, n.1 (D.S.C. Jan. 13, 2012), Report and Recommendation adopted by 2012 WL 360105 (D.S.C. Feb. 2, 2012); see also Rivera v. S.C. Dep't of Corr., No. 8:18-CV-2539-JMC-JDA, 2018 WL 7825496, at *2 (D.S.C. Nov. 13, 2018) (discussing SCTCA claim brought in federal court and recommending the plaintiff's SCTCA claim be remanded to the state court), Report and Recommendation adopted by 2019 WL 642916 (D.S.C. Feb. 15, 2019). Plaintiff's SCTCA claim should be dismissed because “[s]uits brought under the [SCTCA] must be brought in a state court within the boundaries of South Carolina.” Odom v. Wilson, No. 8:07-cv-0325-PMD-JRM, 2007 WL 1231797, at *6 (D.S.C. Apr. 25, 2007) (emphasis omitted); see also Carroll v. Greenville Cnty. Sheriff's Dep't, 871 F.Supp. 844, 845 (D.S.C. 1994) (“Because South Carolina is not amenable to suit in this court without the state's express permission, the action [asserting a claim under the SCTCA] must be dismissed.”).
RECOMMENDATION
In light of all the foregoing, it is recommended that the District Court DENY Plaintiff's motion [Doc. 27] for leave to file his Second Amended Complaint and DISMISS this action pursuant to 28 U.S.C. §§ 1915 and 1915A without further leave to amend and without issuance and service of process.
The undersigned notes that Plaintiff has had multiple opportunities to cure his pleading deficiencies and that any attempt to cure the deficiencies in the Second Amended Complaint would be futile for the reasons stated herein. Accordingly, the District Court should dismiss this action without affording Plaintiff an opportunity to amend his Amended Complaint. See Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 n.7 (D.S.C. Oct. 2, 2018) (declining to grant an opportunity to amend where amendment would be futile); see also Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (“[W]hen a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable.”).
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).