Opinion
C/A 2:23-cv-02084-DCC-JDA
06-13-2023
Darrell Denteze Horry, Plaintiff, v. Officer Cardenas, Officer Tew, Officer Stroder, Mount Pleasant Police Department, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Darrell Denteze Horry (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. [Doc. 1.] Plaintiff is an inmate at the Muscogee County Correctional Institution in Columbus, Georgia. [Id. at 2.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the District Court. For the reasons below, the undersigned finds that this action is subject to summary dismissal.
BACKGROUND
Plaintiff makes the following allegations in his Complaint. Plaintiff contends that the events giving rise to his claims occurred on May 16, 2020, in Mount Pleasant, South Carolina. [Id. at 1, 6.] According to Plaintiff, Defendant Tew conducted a traffic stop of a vehicle in which Plaintiff was a passenger, claiming the stop was because of a hanging tail light. [Id. at 6.] After approaching the vehicle, Defendant Tew observed that the vehicle's two occupants were black males. [Id.] Defendant Tew asked the driver for his license and insurance information. [Id.] Defendant Tew then claimed he smelled “‘weed,'” although no marijuana or other drugs were found in the vehicle or in the possession of the occupants. [Id.] The driver consented to a search of the vehicle and Plaintiff was ordered to step out of the vehicle. [Id.]
After Plaintiff exited the vehicle, he agreed to let Defendant Tew check him for weapons but refused to consent to a search of his person. [Id.] Defendant Tew then asked Plaintiff if he had ever been in trouble with the law; Plaintiff responded “‘no.'” [Id.] Defendant Tew then searched the driver and a K9 unit/narcotics officer searched Plaintiff. [Id.] Plaintiff contends most of the officers on the scene were narcotics officers. [Id.] Plaintiff contends that the traffic stop was “rehearsed” and the vehicle was targeted because it was occupied by two black males leaving a Mexican restaurant, which the police had been staking out. [Id.] Plaintiff contends that the stop was illegal and the result of racial profiling. [Id.]
Defendant Cardenas called Plaintiff to the front of the police car to conduct a “simple ‘pat down'” for weapons. [Id. at 7.] However, the search resulted in Plaintiff being sexually harassed, humiliated, and intimidated by Defendant Cardenas in violation of Plaintiff's Fourth Amendment rights. [Id.] While conducting a pat down search, Defendant Cardenas grabbed Plaintiff's testicle three times and ignored Plaintiff's requests to stop. [Id.] Defendant Cardenas sexually assaulted Plaintiff by squeezing his testicles while he was handcuffed, which was recorded on the officer's dash camera and in the view of Defendants Tew and Stroder. [Id.] Defendant Cardenas refused to stop despite Plaintiff's pleas and “continued the assault in amusement.” [Id.] Defendant Cardenas commanded Plaintiff to spread his legs, but Plaintiff declined. [Id.] Defendant Cardenas then squatted down to see if any drugs fell from Plaintiff's crotch area. [Id.] After no drugs were found, the driver was given a written warning for a tail light violation and Plaintiff's handcuffs were removed and he was released. [Id.]
Plaintiff contends that these actions violated his constitutional rights. [Id.] For his relief, Plaintiff seeks $250,000 in actual damages and $500,000 in punitive damages. [Id.]
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 “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 be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought 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, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se 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). “And, although the pleading requirements of Rule 8(a) are very liberal, more detail often is required than the bald statement by plaintiff that he has a valid claim of some type against defendant.” Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (citation and internal quotations omitted). This is particularly true in a § 1983 action where “liability is personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). “In 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”).
DISCUSSION
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). 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). Here, Plaintiff's Complaint is subject to summary dismissal for the reasons that follow.
Defendants entitled to dismissal
As an initial matter, certain Defendants are entitled to dismissal from this action because they are not persons subject to suit under § 1983 or because Plaintiff has failed to state facts showing their personal involvement in the alleged unlawful conduct.
Defendant Stroder
Defendant Stroder is subject to summary dismissal because Plaintiff does not allege facts showing his direct involvement in the alleged unconstitutional conduct. The sole allegation in the Complaint as to Defendant Stroder is that he “stood by and watch[ed].” [Doc. 1 at 7.] “However, such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable § 1983 claim.” Tracey v. Nelson, No. 1:12-cv-1614-JMC-SVH, 2012 WL 4583107, at *2 (D.S.C. Aug. 31, 2012), Report and Recommendation adopted by 2012 WL 4588205 (D.S.C. Oct. 1, 2012).
Defendant Mount Pleasant Police Department
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). The Mount Pleasant Police Department is a facility or building and, as such, is not subject to suit because it cannot be sued as a “person” in a § 1983 lawsuit. See e.g., Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D. N.C. 1989) (“Claims under § 1983 are directed at ‘persons' and the jail is not a person amenable to suit.”); Morrison v. Greenville Cnty. Det. Ctr., No. 4:17-cv-2657-JMC-TER, 2017 WL 7732598, at *3 (D.S.C. Oct. 10, 2017), Report and Recommendation adopted by 2018 WL 936383 (D.S.C. Feb. 16, 2018). Police departments, buildings, and correctional institutions usually are not considered legal entities subject to suit. See Freeman v. Anderson City Police Dep't, No. 8:21-cv-03872-JMC-JDA, 2022 WL 507610, at *3 (D.S.C. Jan. 19, 2022), Report and Recommendation adopted by 2022 WL 507424 (D.S.C. Feb. 17, 2022). Accordingly, the Mount Pleasant Police Department is entitled to summary dismissal as a Defendant from this § 1983 action
Plaintiff's claims are subject to dismissal
Next, Plaintiff has failed to state a claim for relief that is plausible. The Complaint appears to assert several claims arising from the traffic stop. The Court will address each claim in turn below.
First, to the extent that Plaintiff asserts the traffic stop was unlawful, he has failed to allege facts to state a claim for relief. A traffic stop is constitutionally reasonable when a police officer has either “probable cause to believe that a traffic violation has occurred[,]” Whren v. United States, 517 U.S. 806, 810 (1996), or a “reasonable articulable suspicion that criminal activity may be afoot,” Terry v. Ohio, 392 U.S. 1, 30 (1968) (quotation marks omitted). See also Vaughn v. Whitfield, No. 8:12-cv-2405-RMG, 2013 WL 5144751, at *11 (D.S.C. Sept. 12, 2013) (“A police officer may stop a vehicle when the officer has probable cause that a traffic violation has occurred.”). Here, Plaintiff alleges that Defendant Tew “conducted a traffic stop on the vehicle [Plaintiff] was in because of a hanging tail light which is [a] South Carolina traffic law violation.” [Doc. 1 at 6.] Plaintiff further alleges that, at the conclusion of the traffic stop, “the driver [was] written a warning for a tail-light violation.” [Id. at 7.] Because Plaintiff concedes that the traffic stop was based on the violation of a state traffic law, he cannot show that the stop was unlawful.
Second, to the extent that Plaintiff asserts that the temporary detention during the traffic stop was unlawful, he has failed to allege facts to state a claim for relief. “[T]he temporary detention of an individual in the course of a routine traffic stop is reasonable per se, when probable cause exists to believe that a traffic violation has occurred.” Vaughn, 2013 WL 5144751, at *11. As noted, Plaintiff concedes Defendant Tew initiated the traffic stop due to a traffic violation, thus satisfying probable cause and making the traffic stop constitutionally permissible. Additionally, Plaintiff alleges that, once the traffic stop was initiated, Officer Tew stated that he smelled “‘weed'” and the driver then consented to a search of the vehicle at which time Plaintiff was ordered to step out of the vehicle. [Doc. 1 at 6.] These allegations fail to establish any unconstitutional conduct. “[O]nce an individual has been detained for a traffic violation, the officer may order the driver out the vehicle. Once the individuals are outside of the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver ‘might be armed and presently dangerous.' These procedures also apply to passengers.” Vaughn, 2013 WL 5144751, at *11 (citations omitted). Further, “where an officer has reasonable suspicion that drugs are present in a lawfully stopped vehicle, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk of both the driver and the passenger.” Id. And, here, Plaintiff consented to the pat-down search for weapons. As such, Plaintiff has not alleged facts showing that the officers' conduct in any aspect of the traffic stop or short detention of Plaintiff was unlawful.
Third, as to a failure-to-protect claim, Plaintiff has failed to allege facts to state a claim for relief that is plausible. Critically, Plaintiff has not alleged facts showing that any Defendant was aware that Plaintiff was at risk to be harmed and, therefore, he has not demonstrated that any Defendant had a sufficiently culpable state of mind. Accordingly, Plaintiff has failed to state a claim upon which relief can be granted. See Burress v. Perkins, No. 2:13-cv-01970, 2014 WL 12543919, at *3 (S.D. W.Va. Mar. 20, 2014) (finding that a plaintiff did not state a claim upon which relief could be granted where the plaintiff did not allege “facts demonstrating that the defendants were aware that the three assaulting inmates posed a significant threat to the plaintiff or were likely to cause him harm”); see also Santiago v. Walls, 599 F.3d 749, 756-57 (7th Cir. 2010) (affirming the district court's dismissal of a failure-to-protect claim where the complaint failed to allege that correctional officers “had any knowledge of the impending harm”).
Fourth, Plaintiff's claim for sexual assault is without merit. Plaintiff alleges that he consented to a weapons search and that, during the pat down search, Defendant Cardenas sexually assaulted him by grabbing his testicles. [Doc. 1 at 7.] Courts have found that such allegations, without more fail to state a claim for relief of a constitutional magnitude. See, e.g., Givens v. Aaron, No. 3:14-cv-378-FDW, 2016 WL 4546448, at *5 (W.D. N.C. Aug. 31, 2016) (“In cases involving searches, courts have repeatedly ruled that allegations of being searched (even strip-searched) are not sufficient to state or forecast a cruel and unusual punishment claim. This is so even where an inmate alleges that his private parts were touched during the search.” (citation omitted”)), aff'd, 688 Fed.Appx. 231 (4th Cir. 2017); Al-Haqq v. James, No. 2:21-cv-1721-DCC-MGB, 2022 WL 17156813, at *5 (D.S.C. Sept. 28, 2022) (noting allegations that a defendant “‘grabbed' Plaintiff's testicles during a routine search” were insufficient to state a claim as “more is needed to establish a constitutional violation”) (collecting cases), Report and Recommendation adopted by 2022 WL 17117090 (D.S.C. Nov. 21, 2022); Strickland v. Turner, No. 9:15-cv-0275-PMD-BM, 2018 WL 3151639, at *21 (D.S.C. Jan. 26, 2018) (“[A] single alleged instance of fondling during the course of a pat down search does not rise to the level of a constitutional violation.” (collecting cases)), Report and Recommendation adopted by 2018 WL 1443953 (D.S.C. Mar. 23, 2018). As this Court has previously noted, “[t]hat [a d]efendant ‘grabbed' [a p]laintiff's penis and testicles in the course of his search for narcotics does not make the search unreasonable.” Reeder v. Vanpelt, No. 6:18-cv-00416-TMC-JDA, 2018 WL 6933434, at *7 (D.S.C. Sept. 20, 2018), Report and Recommendation adopted by 2018 WL 6288253 (D.S.C. Dec. 3, 2018). Indeed, the Supreme Court has observed that a Terry frisk for weapons is certainly no “petty indignity” insofar as often “[t]he officer must feel with sensitive fingers every portion of the prisoner's body” and “[a] thorough search must be made of the prisoner's arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” Terry, 392 U.S. at 16-17 & n.13 (internal quotation marks omitted).
Additionally, the Complaint does not plausibly allege that Defendant Cardenas made any statements indicating that he was touching Plaintiff for any non-law-enforcement purposes.
Finally, the undersigned notes that the Court's conclusion does not mean that Plaintiff is without a remedy as he may pursue state law claims in the appropriate court. Indeed, Plaintiff explains in his Complaint, and the Court takes judicial notice, that Plaintiff has filed a civil action in the state court asserting nearly identical claims based on the events complained of in the present case. That action remains pending. See Horry v. Town of Mount Pleasant, No. 2021-cp-10-01439, available at Charleston County Public Index, https://publicindex.sccourts.org/Charleston/PublicIndex/PISearch.aspx (search by case number “2021CP1001439”) (last visited June 12, 2023).
A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
CONCLUSION
Consequently, for the reasons stated above, it is recommended that the District Court dismiss this action without issuance and service of process pursuant to 28 U.S.C. § 1915A.
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 further amendment would be futile. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 610-12, 614-15 (4th Cir. 2020); see also Jacobs v. Wilson, No. 5:12-cv-137, 2013 WL 3783959, at *2 (N.D. W.Va. July 18, 2013) (“Exhaustion during the pendency of a civil action filed before exhaustion was complete also does not allow a plaintiff to avoid dismissal.”).
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).