Opinion
C. A. 4:24-3133-DCC-TER
07-25-2024
Quarmaine Marquise Jones, Plaintiff, v. South Carolina Department of Corrections, Willie Eagerton, Assistant Warden, Mr. West, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III South Carolina United States Magistrate Judge.
This is a civil action filed by a former pretrial detainee and former state prisoner, currently on probation, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff's action is subject to dismissal for failure to state a claim upon which relief can be granted. On June 24, 2024, Plaintiff was ordered by the Court to file an Amended Complaint because deficiencies in the original Complaint would result in a summary dismissal if not remedied by Plaintiff. (ECF No. 11). The court expressly identified the deficiencies and directed Plaintiff with case law regarding the specific deficiencies. (ECF No. 11). Plaintiff filed an Amended Complaint but deficiencies remain.
Plaintiff's recent notice of change of address states “may my civil suit for PREA be proceeded.” (ECF No. 13)(errors in original). In answer to the question regarding when did events giving rise to your claim occur, Plaintiff stated “[i]n 2016, I were sexually assaulted between having a cell phone on K-2 to call home in January. The dragged on camera by roommate in 170 in Waxhaw B unit.” (ECF No. 14 at 5)(errors in original). Plaintiff's other allegations are also unclear: “nobody saw what happen when use Markese Barlow cell phone him penetrating me after using lotion an offering me K-2. I was standing at the top bunk area.” Later, as injuries, Plaintiff alleges he “never got checked for any diseases for sexual intercourse.” (ECF No. 14 at 6). As relief, Plaintiff states “going to mental health cost when I have to catch a ride such as a taxi cab and help mom. I'm PTSD, paranoid, schizophrenia, bipolar and anxiety in my medical history recently. I request me to have 250,000 dollars check.” (ECF No. 14 at 6)(errors in original). Under the grievance section, Plaintiff states “my civil suit is against any whom is to be interacting with me of PREA.” (ECF No. 14 at 9)(errors in original). Plaintiff alleges Defendant Waldo is employed at McCormick, an SCDC institution. (ECF No. 14 at 9). Plaintiff marked Bivens as his cause of action; however, no defendants are federal employees. (ECF No. 14 at 4).
Liberally construed, Plaintiff appears to allege this is a PREA suit for an assault by another inmate in 2016. However, “[n]othing in the PREA suggests that Congress intended to create a private right of action for inmates to sue prison officials for noncompliance with the Act.” De'lonta v. Clarke, No. 7:11-CV-00483, 2012 WL 4458648, at *3 (W.D. Va. Sept. 11, 2012), aff'd sub nom. De'Lonta v. Pruitt, 548 Fed.Appx. 938 (4th Cir. 2013)(collecting cases). PREA authorizes grant money and creates a commission to study the issue; PREA does not grant prisoners any specific rights. See 34 U.S.C. § 30301, et seq; see also Bivens v. Boyd, No. 9:22-cv-04553-SAL-MHC, 2023 WL 6542259, at *3 (D.S.C. Mar. 22, 2023), report and recommendation adopted, 2023 WL 6540905 (D.S.C. Oct. 6, 2023). Plaintiff has failed to state a claim upon which relief can be granted.
Plaintiff states Defendant Naomi of the Cumbee Center withheld papers from him to pursue his “case of being sexually assaulted.” (ECF No. 14 at 4). Liberally construed, to the extent Plaintiff alleges several years later he was not given all of his papers upon release from prison related to an inmate assault that occurred in 2016, Plaintiff has not pleaded with specificity that a non-frivolous legal claim was frustrated or impeded by some actual deprivation of access because there is no separate cause of action under PREA. See Lewis v. Casey, 518 U.S. 343, 352-353 (1996). Further, the statute of limitations has long run on any other claims possibly related to Plaintiff's prison inmate sexual assault.
Plaintiff has failed to state a claim upon which relief can be granted against the named Defendants in the Amended Complaint and this action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss this action with prejudice under § 1915(e) and § 1915A and without issuance and service of process.
It is recommended that this action be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).