Opinion
C/A 4:24-1034-DCC-TER
10-11-2024
Jeremy Clay Orr, #610735, Plaintiff, v. Richland County, Advanced Medical, Director Crayman J. Harvey, Jermain D. Gordon, J. Lipcomb, Mr. Rodney, Correctional Officer Jackson, Lt. Pikney, Lt. Dupree, Correctional Officer Madison, Lt. Suttle, Cpt. Ligget, Dr. Shafer, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pretrial detainee, 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).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The 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 frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
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 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 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 has filed three separate complaints in this action. Only the Second Amended Complaint is the operative complaint. On March 7, 2024, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 7). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 11); however, some deficiencies persisted, and the entirety of the action was recommended for dismissal. (ECF No. 14). Plaintiff's objections conveyed a desire to remedy some of the deficiencies previously identified and the district judge ordered Plaintiff to file a Second Amended Complaint. (ECF No. 26). Plaintiff filed a Second Amended Complaint (ECF No. 33), but some deficiencies still remain.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges his claims are under the First, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments. (ECF No. 33 at 5). Plaintiff requests monetary damages due to his broken toe, broken tailbone, injured foot/leg, chest pain/lung problems due to black mold, and ringworm due to unclean uniforms, blankets, and sheets. (ECF No. 33 at 11).
Defendant Richland County is subject to summary dismissal. “Count[ies] ... [are] protected by the Eleventh Amendment, which bars suits by citizens against non-consenting states brought either in state or federal court.” Blakely v. Mayor of Greenville Cty., No. 6:12-cv-02587-MGL, 2012 WL 6675095, at *2 (D.S.C. Sept. 25, 2012), report and recommendation adopted, 2012 WL 6675093 (D.S.C. Dec. 21, 2012)(citing Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890)).
Plaintiff named “Advanced Medical” as a Defendant in some regard in the Second Amended Complaint. (ECF No. 33 at 4). Plaintiff was instructed in the prior order:
A defendant in a § 1983 action must qualify as a “person.” Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000)(unpublished opinion). Detention Centers are not defendants amenable to suit in a § 1983 action. The same also applies to Defendant “advanced medical provider” with title in Complaint as “doctor and nurses and medical all.” Groups of persons are not amenable to suit in a § 1983 action.(ECF No. 7 at 2-3). Plaintiff makes no factual allegations causally connected to Defendant “Advanced Medical.” Plaintiff was previously instructed in the court's order about causal connections between specific conduct, specific individual defendants, and specific injuries and requirements of Fed. R. Civ. Proc. R.8 and related case law. (ECF No. 7 at 3). Plaintiff fails to state a claim upon which relief can be granted as to “Advanced Medical” and this defendant is subject to summary dismissal.
Plaintiff alleges there are mold and bug conditions and briefly listed Defendants Suttle and Ligget as having put him in this particular dorm by their classification. (ECF No. 33 at 9). There is no constitutionally recognized liberty interest in a particular security classification or prison placement. Meachum v. Fano, 427 U.S. 215, 225 (1976). Federal courts are required to accord great consideration to a correctional system's need to maintain order, discipline, and control, and the choices of where and how to confine Plaintiff are a determination made by the correctional system and not the courts. See Woffv. McDonnell, 418 U.S. 539, 558-62 (1974). An inmate does not have a constitutional right to be confined at a particular custody level or in a particular portion or unit of a correctional institution. See Olim v. Wakinekona, 461 U.S. 238, 245-48 (1983). Plaintiff fails to state a claim upon which relief can be granted as to Defendants Suttle and Ligget and Defendants Suttle and Ligget are subject to summary dismissal.
There are several allegations about nurses not giving care, medication, or changing bandages; however, after several court orders and amended complaints, Plaintiff still fails to name specific individuals connected to all of his allegations. These claims are subject to summary dismissal. The same would apply to Plaintiff's general allegations of inmates taking his food, discrimination, black mold, sleeping on floor, water backed up in restrooms, limited working toilets, rats, bugs, overcapacity, “white people beaten on,” lack of soap, clean uniforms, or clean blankets at times, and “been refused my right to religion” and “due process has been violated” without more specifics. (ECF No. 33 at 12-13). Plaintiff also does not connect any person to “speedy trial”allegations. Plaintiff was already warned about the requirements of Fed. R. Civ. Proc. R. 8. To assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). These claims are subject to summary dismissal.
Even so, Plaintiff's speedy trial claim does not meet the criteria of special circumstances. There has not been inordinate delay. See e.g. Mathis v. Hood, 851 F.2d 612 (2d Cir. 1988)(six-year delay).
While Plaintiff alleges a plethora of general conditions allegations unconnected to any individual defendant, Plaintiff alleges the specific date that gave rise to his alleged claims is October 18, 2023, 4:45p.m. This date is when Plaintiff was injured from his foot catching an open drain hole in the showers. (ECF No. 33 at 14). Plaintiff alleges Defendants Dupree and Pikney came in and could see his clearly broken toe and swollen, bloody ankle. (ECF No. 33 at 6). Plaintiff alleges they did not call medical, did not offer assistance, and just left him there unable to walk. (ECF No. 33 at 6). Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendants Dupree and Pikney, and this same day service and issuance of summons as to these Defendants has been authorized by separate order.
Later, Plaintiff was taken to the hospital and told to use crutches or a wheelchair for a while and that he would need CAT scans and MRIs in the next few days. (ECF No. 33 at 7). Plaintiff allege Defendant Madison told the nurse she did not need to come in anymore and the hospital nurse never wrote up the doctor's final orders. Plaintiff alleges Madison stopped Plaintiff from interacting with staff about orders and pain medications. (ECF No. 33 at 7). Plaintiff alleges Madison also took the wheelchair given (ECF No. 33 at 8). Plaintiff briefly alleges Defendant Jackson also took Plaintiff's needed wheelchair. (ECF No. 33 at 8). Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendants Jackson and Madison, and this same day service and issuance of summons as to these Defendants has been authorized by separate order.
Plaintiff alleges “ever since Dr. Shafer took an x-ray and I told him the doctor orders weren't being followed, the medical doctor will not see me any more.” (ECF No. 33 at 11). Liberally construed and considering the extent of Plaintiff's alleged injuries, Plaintiff's allegations against Dr. Shafer at this procedural stage are sufficient to withstand summary dismissal and this same day service has been issued by separate order.
Defendant Harvey is the Director of the detention center. Defendant Gordon is the Assistant Director of the detention center. (ECF No. 33 at 2-3). Defendant Lipcomb is the Director of Compliance. Defendant Rodney is the SCDC Branch Chief Inspector. (ECF No. 33 at 3). Plaintiff alleges “causal connection should hopefully exist now as being hurt from neglect of [unreadable] and upkeep of jail resulting injury is by” these specific defendants. Plaintiff alleges “lack of maintenance and upkeep has resulted from the defendants' specific conduct and is the affirmative link between the injury and the conduct.” (ECF No. 33 at 9). These allegations are conclusory for the most part. “I suffered injury ...to my toe, foot, leg, and back due to the conduct or lack of by [Harvey, Gordon,] and director of compliance not fixing everything or even some of the problems in the jail.” (ECF No. 33 at 10). Plaintiff alleges Defendants Lipcomb and Rodney talked with Plaintiff after they received Plaintiff's letter to DHEC and “told me that the bathroom light would be fixed and the drain cover would be fixed as well. Over 5 months later, it was not fixed. They are also responsible from my slip and fall landing on my tail breaking my tailbone.” (ECF No. 33 at 10-11). Liberally construed at this procedural stage, it appears these defendants were more involved in Plaintiff's allegations than just as supervisors and may have had personal knowledge of the conditions and left them unremedied. Plaintiff's allegations liberally construed are sufficient to withstand summary dismissal as to Defendants Harvey, Gordon, Lipcomb, and Rodney, and this same day service and issuance of summonses as to these Defendants has been authorized by separate order.
Plaintiff has been previously notified of deficiencies in the prior complaints, has been given an opportunity to amend his complaint twice, and has availed himself of the opportunity to amend his complaint twice but deficiencies remain regarding some Defendants and claims.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Richland County, Advanced Medical, Suttle, and Ligget be summarily dismissed with prejudice and without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Pikney, Dupree, Madison, Jackson, Shafer, Harvey, Gordon, Lipcomb, and Rodney.
As noted above, Plaintiff has been given two opportunities to amend and has filed a Second Amended Complaint. It is recommended that Defendants Suttle, Ligget, Richland County, and Advanced Medical be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he 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 of Court
United States District Court
Post Office Box 2317
Florence, 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).