Opinion
C/A 4:23-3695-TLW-TER
11-07-2023
Sherwin L. McFadden, #261189, Plaintiff, v. South Carolina Department of Corrections, Martyna Tanaisha Green, Shanekia Dickerson, Taunjanese Nicole Meggett, Anthony Tishiro Inabinette, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
This is a civil action filed by a state prisoner, 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. Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983 “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) (internal quotation and citation omitted). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Under § 1983, a plaintiff must establish 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 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff alleges his Eighth Amendment rights have been violated as a result of environmental tobacco smoke(ETS) exposure, as well as alleging state law claims under the South Carolina Torts Claims Act. (ECF No. 1 at 5). Defendants are former employees of SCDC who have been terminated in 2021 and criminally charged for attempts to smuggle tobacco products into SCDC. (ECF No. 1). Plaintiff alleges in 2021 Defendant Green attempted to smuggle into Broad River “deleterious tobacco products and marijuana.” (ECF No. 1 at 7). Plaintiff alleges in 2021 Defendant Dickerson attempted to smuggle into Broad River “20 Newport cigarettes.” (ECF No. 1 at 7). Plaintiff alleges in 2021 Defendant Meggett attempted to smuggle into Broad River “rolling papers.” (ECF No. 1 at 8). Plaintiff alleges in 2021 Defendant Inabinett attempted to smuggle into Broad River “deleterious tobacco products.” (ECF No. 1 at 9).
Plaintiff alleges he did not file a grievance about ETS until 2023 and was moved to a different unit after his grievance. (ECF No. 1 at 13). Plaintiff alleges his damages are related to having to take prescription medication, coughing, throat irritations, bronchitis, shortness of breath, watery/irritation of eyes, asthma, fatigue, headaches, weight loss, and unable to rest or sleep. (ECF No. 1 at 13-14, 21). Plaintiff alleges SCDC by policy banned tobacco products at least over a decade ago. (ECF No. 1 at 14). Plaintiff requests monetary damages. (ECF No. 1 at 21)
Plaintiff alleges Defendants acted with deliberate indifference and created a risk of serious health conditions to Plaintiff as a result of Plaintiff's exposure to secondhand tobacco smoke. (ECF No. 1 at 15). Plaintiff argues the objective and subjective components of his claim are met because of Defendants' affirmative steps to conceal contraband. (ECF No. 1 at 15). Plaintiff notes the date of events of his claim as October and November 2021(when the contraband was intercepted by SCDC officials), but Plaintiff also states the dates of his claim are in 2022 and 2023 long after Defendants were fired and not on SCDC property. (ECF No. 1 at 20).
While exposure to environmental tobacco smoke(ETS) can be a type of civil rights claim,Plaintiff here has failed to state a claim upon which relief can be granted because from Plaintiff's own factual allegations the tobacco attempted to be smuggled into Broad River by Defendants did not reach the ETS smoke phase as it was never actually smoked and had already been intercepted by SCDC officials. Plaintiff cannot allege plausible facts supportive of the elements of his claim. This is further emphasized by Plaintiff's allegations that there was still smoke in 2022 and 2023 and Plaintiff's grievances being filed in 2023 when any smoke produced would not be as a result of these Defendants who were fired in 2021. (ECF No. 1); see Bailey v. Rife, 2021 WL 6496561, at *8 (S.D. W.Va. Nov. 19, 2021), adopted by 2022 WL 130746 (S.D. W.Va. Jan. 13, 2022) (dismissing 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”); Moore v. Owens, 2023 WL 4884855, at *2 (3d Cir. Aug. 1, 2023)(dismissing in part under Twombly where there were no allegations of specific facts to plausibly demonstrate unreasonably high ETS exposure levels). Plaintiff does not allege plausible facts about his exposure to unacceptable levels of ETS, only conclusory allegations. See Iqbal, 556 U.S. at 678; Helling, 509 U.S. at 36. Plaintiff does not allege when, where, or how often he was exposed to ETS. See Tate v. Martin, 2014 WL 1122338, at *9 (M.D. N.C. Mar. 20, 2014), aff'd, 583 Fed.Appx. 60 (4th Cir. 2014).
In Helling v. McKinney, 509 U.S. 25 (1993), the United States Supreme Court recognized an inmate could assert an Eighth Amendment claim by alleging that prison officials, acting with deliberate indifference, exposed an inmate “to levels of ETS that pose an unreasonable risk of serious damage to his future health.” Helling, 509 U.S. at 35. The objective portion of a deliberate indifference claim involving ETS exposure requires alleging exposure to unreasonably high levels of ETS and that today's society will not tolerate his exposure to this risk. Id. at 35. The subjective element is deliberate indifference to a plaintiff's exposure to this risk. Id. Helling does not require smoke free prisons. Graves v. Hallowell, No. 5:13-CT-3152-D, 2014 WL 4741250, at *3 (E.D. N.C. Sept. 23, 2014), aff'd, 600 Fed.Appx. 148 (4th Cir. 2015)(collecting cases).
As to SCDC as a defendant, while Plaintiff notes SCDC has a non-smoking policy, imperfect enforcement of a non-smoking policy does not rise to the level of deliberate indifference. Johnson v. Garman, 2011 WL 2462087, at *2 (W.D. Va. June 17, 2011); 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); Bailey v. Rife, 2021 WL 6496561, at *7-8 (S.D. W.Va. Nov. 19, 2021), report and recommendation adopted, 2022 WL 130746 (S.D. W.Va. Jan. 13, 2022). By Plaintiff's allegations, SCDC officials intercepted Defendants' tobacco and it was never smoked. (ECF No. 1).
As to Plaintiff's allegations of state law claims based upon the SCTCA, the court should abstain from exercising jurisdiction over such claims. Such claims can be considered by this court through the exercise of “supplemental jurisdiction,” which allows federal courts to hear and decide state law claims along with federal claims. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 387 (1998); see 28 U.S.C. § 1367. However, federal courts may decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” Here, the complaint fails to state a claim for a constitutional violation under 42 U.S.C. § 1983. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
This action is subject to summary dismissal for failure to state a claim upon which relief can be granted.
RECOMMENDATION
It is recommended that the District Court dismiss Plaintiff's claims under § 1983 with prejudice and Plaintiff's state law claims without prejudice under § 1915(e) and § 1915A and without issuance and service of process.
It is recommended that this action be dismissed without 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).