Opinion
C/A No. 6:20-228-HMH-PJG
02-20-2020
Tito Knox, Plaintiff, v. Elizabeth G. Magera; Sergio A. Sanchez MD, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Tito Knox, proceeding pro se, filed this civil rights action pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). By order dated January 31, 2020, the court provided Plaintiff the opportunity to file an amended complaint to correct deficiencies identified by the court that would warrant summary dismissal of the Complaint pursuant to § 1915. (ECF No. 10.) Plaintiff filed an Amended Complaint on February 6, 2020. (ECF No. 12.) Having reviewed the Amended Complaint in accordance with applicable law, the court concludes the Amended Complaint still fails to state a viable claim and should be summarily dismissed without prejudice and issuance of service of process.
I. Factual and Procedural Background
In his original complaint, Plaintiff indicated that he brought this action against a federal probation officer and a psychiatrist pursuant to Bivens v. Six Unkown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Compl., ECF No. 1 at 4.) Plaintiff argued that he was not provided a hearing in his federal criminal trial and, as a result, he must take injections for the rest of his life. (Id. at 5-6.) Plaintiff provided no facts about the named defendants. Plaintiff indicated he sought damages in this suit because he "could have wrapped this up in 2007." (Id. at 6.) The court's records indicate that Plaintiff was found not guilty by reason of insanity in a criminal matter in this court in 2007. United States v. Knox, Cr. No. 6:06-269-HMH.
In the Amended Complaint, which is just a typed paragraph of text, Plaintiff again claims that he was denied a hearing in his federal criminal case. (ECF No. 12 at 1.) As to the named defendants, he indicates that he is suing a probation officer, Elizabeth G. Magera, for "illegally supervising" him. (Id.) He also claims he is suing a doctor, Sergio A. Sanchez, for giving him "mind altering drugs" that have harsh side effects. (Id.)
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint. The Amended 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. This statute allows a district court to dismiss the case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
To state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
The court finds that despite having availed himself of the opportunity to cure the deficiencies previously identified by the court, Plaintiff's Amended Complaint should nonetheless be summarily dismissed because it still fails to provide any plausible allegation that he was harmed by the defendants. See Martin v. Duffy, 858 F.3d 239, 247-48 (4th Cir. 2017) (finding the plaintiff's "repeated, ineffective attempts an amendment" suggest further amendment would be futile). Plaintiff asserts that he seeks to sue the defendants for damages pursuant to Bivens, but Plaintiff provides no indication of what federal right he believes the defendants violated. See Bivens v. Six Unkown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (establishing a remedy for plaintiffs alleging certain constitutional violations by federal officials to obtain monetary damages in suits against federal officials in their individual capacities). Plaintiff's bare allegations that a probation officer "illegally supervised" him and that a doctor gave him mind altering drugs, fail to plausibly allege that the defendants are liable to him for damages pursuant to Bivens. See Fed. R. Civ. P. 8 (requiring that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief"); Iqbal, 556 U.S. at 678 (stating Federal Rule of Civil Procedure 8 does not require detailed factual allegations, but it requires more than a plain accusation that the defendant unlawfully harmed the plaintiff, devoid of factual support). Therefore, the Amended Complaint also fails to state a claim upon which relief can be granted.
III. Conclusion
Accordingly, the court recommends that the Amended Complaint be summarily dismissed with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE February 20, 2020
Columbia, South Carolina
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).