Opinion
C. A. 8:23-cv-02316-TLW-JDA
08-17-2023
Clarence Silvester Gregory, Plaintiff, v. State of South Carolina Department of Corrections, Martyna Tanaisha Green, Shanekia 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 Defendants Green, Dickerson, Megget, and Inabinett violated his rights under the United States Constitution and the South Carolina Tort Claims Act (“SCTCA”), SC Code §§ 15-78010, et seq. Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the Broad River Correctional Institution (“BRCI”).
Plaintiff's original Complaint named additional Defendants which have been terminated from this action based on the filing of Plaintiff's Amended Complaint. Additionally, Plaintiff contends that he names SCDC only as a Defendant under the SCTCA and not under § 1983. [Doc. 10 at 5.]
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 an Amended Complaint filed by Plaintiff, which was entered on July 10, 2023. [Doc. 10.] For the reasons below, the undersigned concludes that this action should be dismissed 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.]
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 Amended Complaint
Plaintiff makes the following pertinent allegations in his Amended Complaint. [Doc. 10.] Plaintiff contends that Defendants violated his rights under the Eighth Amendment to the United States Constitution because of their deliberate indifference to his health and safety. [Id. at 5.] Plaintiff also purportedly brings a claim under the SCTCA for Defendants' alleged grossly negligent conduct. [Id.] By way of summary, Plaintiff alleges that Defendants “acted with deliberate indifference, by knowingly [taking] affirmative steps and measures to smuggle[ and] traffic[] ‘hazardous tobacco products to prisoners.'” [Id.]
Plaintiff's 25-page Amended Complaint is long on legal assertions but short on factual averments. Although the Court only summarizes the allegations from the Amended Complaint, the undersigned has carefully reviewed all of Plaintiff's allegations, arguments, cited legal authorities, and other documents and submissions filed with the Court.
The events giving rise to Plaintiff's claims occurred at BRCI in the Marion Housing Unit from October 5, 2021, through November 16, 2021. [Id. at 6.] According to Plaintiff, he was “expos[]ed to deleterious secondhand tobacco smoke, that affirmative[ly] traveled/assailed through the Marion Housing Unit, Air/heating ventilation systems, into Plaintiff's cell/room.” [Id.] Plaintiff alleges that his exposure to and breathing of “deleterious secondhand tobacco smoke . . . has seriously affected [his] respiratory organs.” [Id.]
Plaintiff's allegations are confusing and contradictory at times. For example, as to the approximate date and time that the events occurred, Plaintiff also alleges as follows-“[a]s early as of later, of September thru December, of 2021, even up to April of 2022, hereof.” [Doc. 10 at 6.]
Plaintiff alleges that Defendants Green, Dickerson, Meggett, and Inabinett each acted with deliberate indifference to his health and safety from October 5, 2021, through November 16, 2021, when they “knowingly and clandestinely smuggled, trafficked, distributed and sold hazardous tobacco products [at BRCI], sold them to incarcerated prisoners, of whom affirmative smoked [sic], and the secondhand tobacco smoke, travel[ed] at large, through Plaintiff's cell/room.” [Id. at 7.]
As to his injuries, Plaintiff alleges he has suffered and continues to suffer damages, even though the “smoking stopped.” [Id.] Specifically, Plaintiff alleges he experiences coughing, shortness of breath, throat irritations, throat scratching, seizures, discomfort, inability to sleep or rest, emotional distress, frustration, alterations to his lifestyle, and inconvenience. [Id.] Likewise, Plaintiff contends that he is continuing to take various prescribed medications such as Ezetimibe, Metoprolol, Montelukast, Keppra for sezures, Omeprazole, Amlodpine, Atorvastatin, Docusate Sodium, Mucus Relief, Guaifenesin, Inhalers, Robafen Congestion Cough Formula, Nasal Allergy Spray, Albuterol Sulfate, Inhalation, and Fluticasone Propionate & Salmeterol. [Id.]
For his relief, Plaintiff seeks money damages for his deliberate indifference claim in the amount of $80,000 against each Defendant and money damages in the amount of $300,000 from SCDC under the SCTCA. [Id.]
As to the four individual Defendants named in this action, Plaintiff makes the following allegations as to their purported wrongful and personal direct participation in the acts and omissions giving rise to Plaintiff's claims. As to Defendant Green, Plaintiff alleges
Defendant [Green,] in her individual capacity, while acting in the course and conduct of employment [with SCDC], on/or about, October 5, 2021, at [BRCI,] did knowingly [take]
affirmative clandestine steps and measures, with deliberate indifference, to []smuggle[], traffic[], distribute[], [sell] and provide[] deleterious tobacco products and marijuana, approximately 143 grams of green leaf substances, selfconcealed in two (2), vac[u]um-sealed packages, that were affirmative[ly] concealed/hidden in Defendant Green's SCDOC Uniform Vest; such conduct of Defendant Green, is in violation of the State of South Carolina Code of Laws, 1976 statutory provision § 24-3-950 et seq.; Title 42 U.S.C. § 1983; 8[t]h Amendment, of [t]he U.S. Constitution.[Id. at 15.] As to Defendant Dickerson, Plaintiff alleges
Defendant [Dickerson] in her individual capacity, while acting in the course and conduct of employment with [SCDC], on/or about October 5, 2021, worked at [BRCI], did knowingly [take] affirmative clandestine steps and measures, acted with deliberate indifference, to []smuggle[], traffic[], distribute[], [sell] and provide[] deleterious tobacco products, particularly, Newport[] cigarettes that were affirmative[ly] self-concealed in her . . . “pink-wallet;” such conduct of Defendant [Dickerson], while acting in her individual capacity, is in violation of the State of South Carolina Code of Laws, 1976 statutory provision of § 24-3-950 et seq.; Title 42 U.S.C. § 1983; 8[th] Amendment, of [t]he U.S. Constitution.[Id.] As to Defendant Meggett, Plaintiff alleges
Defendant [Meggett] in her individual capacit[y], while acting in the course and conduct of her employment with [SCDC], at [BRCI], on/or about[] November 16, 2021, and prior to such period of time, did knowingly [take] affirmative clandestine[] steps and measures, acted with deliberate indifference, to []smuggle[], traffic[], distribute[], [sell] and provide[ ]deleterious tobacco products, smart-cell-phones, chargers, digital scales, tobacco rolling papers and flavored cigar rolling papers; Defendant Meggett[] did knowingly [take] further steps to self-conceal[] those aforesaid contraband items in []manila mail packages hidden under other items in a mail cart . . .; Defendant Meggett[] was [ ]fired and arrested;[] such conduct of Defedant[] Meggett, while acting in her individual capacit[y is] in violation of the State of South Carolina Code of Laws, 1976 statutory provision § 24-3-950 et seq.; Title 42 U.S.C. § 1983; 8[th] Amendment, of [t]he U.S. Constitution.[ Id. at 15-16.] As to Defendant Inabinett, Plaintiff alleges
Defendant [Inabinett] in his individual capacit[y], while acting in the course and conduct of employment[ with SCDC], at [BCRI], on/or about October 27, 2021, and/or shortly thereafter[] . . ., did knowingly [take] affirmative steps and clandestine measures, [] acted with deliberate indifference to []smuggle[], traffic[], distribute[], [sell] and provide[] on a weekly basis, deleterious tobacco products, marijuana, cell-phones and other contraband items to Inmates; Defendant Inabinett[] was [] investigated and terminated; such conduct of [Defendant Inabinett], while acting in his individual capacit[y is] in violation of the State of South Carolina Code of Laws, 1976 statutory provision of § 24-3-950 et seq.; Title 42 U.S.C. § 1983; 8[th] Amendment, of [t]he U.S. Constitution.[Id. at 16.]
STANDARD OF REVIEW
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 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).
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).
DISCUSSION
The Court will separately address Plaintiff's deliberate indifference claim under 42 U.S.C. § 1983 and his claim under the SCTCA.
Plaintiff's deliberate indifference claim under § 1983
As noted, Plaintiff filed this action 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”). 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. Critically, 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)).
Further, “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 Amended Complaint demonstrate that prison officials at BCRI enforced 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 nonsmoking 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). And, 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).
For example, Plaintiff avers 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 avers that “[BRCI] has had a longtime standing history of [] confiscating contraband, including but not limited to, tobacco products, cigarettes, marijuana, [and] illegal drugs.” [Id.]
Likewise, Plaintiff has failed to allege facts showing that the named Defendants, who he alleges attempted to smuggle tobacco products into the prison, knew of Plaintiff's complaints regarding ETS exposure but did nothing to alleviate the problems. And he has not alleged that Defendants were aware that ETS posed a specific risk of harm to Plaintiff and then acted with deliberate indifference to that harm. Bailey v. Rife, No. 1:21-cv-00424, 2021 WL 6496561, at *8 (S.D. W.Va. Nov. 19, 2021) (recommending dismissal of Eighth Amendment claim based on exposure to secondhand smoke because “there are absolutely no factual allegations indicating that Defendants knew Plaintiff was being exposed to secondhand smoke within the housing units that posed an unreasonable risk of serious damage and Defendants disregarded such”), Report and Recommendation adopted by 2022 WL 130746 (S.D. W.Va. Jan. 13, 2022).
And, significantly, the Amended Complaint 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 BCRI [Doc. 10 at 15-16], 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”).
In sum, although Plaintiff has alleged that Defendants attempted to smuggle contraband tobacco products into BCRI, he has not alleged facts to show 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 to be exposed to ETS.
Plaintiff's SCTCA claim
As noted, Plaintiff also sues SCDC in his Amended Complaint, seeking relief under the SCTCA for his alleged exposure to ETS at BCRI.
“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 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 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 any attempt to cure the deficiencies in the 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.
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 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).