Opinion
C. A. 4:23-6159-JD-TER
02-15-2024
Corey Anthony Stephens, #2017121276, Plaintiff, v. Jennifer L. Barry, Amy Prock, Myrtle Beach P.D. Chief of Police, Sheriff Sandra Rhodes, 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); 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
Some Defendants in this action are subject to summary dismissal for failure to state a claim upon which relief can be granted. Plaintiff was previously notified of deficiencies in his original complaint and given an opportunity to amend the complaint. Plaintiff availed himself of that opportunity and filed an Amended Complaint. The Amended Complaint continues with some deficiencies and is subject to summary dismissal as to Defendants Rhodes and Prock.
Plaintiff alleges he was sleeping in a car in a hotel parking lot and “should not” have been “approached nor arrested” by Defendant Barry. (ECF No. 11 at 5). Plaintiff alleges his claims are under the Fourth, Fifth, and Eighth Amendments. (ECF No. 11). Plaintiff alleges “I have NOT pleaded guilty to the illegal traffic citation nor to any other charge.” (ECF No. 11 at 5). Plaintiff alleges his interaction with Defendant Barry was on August 30, 2023. (ECF No. 11 at 7). On August 30, 2023, a cash surety bond of $101 was set. Public records of the state court show that case no. 2023-183-0009573 for “2620614302B15-Ordinance / Sleeping In Veh At Night On R.O.W” was disposed of on September 8, 2023, with a guilty plea and a sentence of ten days with a commitment order issued on the same date as the disposition date. Plaintiff alleges he was “merely a passenger”of the vehicle and “the owner was not present.” (ECF No. 11 at 6). Based on public court records, a warrant for multiple drug charges was imaged on September 7, 2023, as the first entry on the state court docket. The multiple drug charges were No. 2023A-2620-602423, 3016-Drugs / Possession of less than one gram of meth. or cocaine base, 3rd or sub. offense; No. 2023A-2620-602424, 0180-Drugs / Poss. of other controlled sub. in Sched. I to V - 2nd or sub. offense (MDMA); No. 2023A-2620-602425, 3016-Drugs / Possession of less than one gram of meth. or cocaine base, 3rd or sub. offense (Meth),; No. 2023A-2620-602426, 0185-Drugs / MDP, Narcotic drugs in Sch. I(b) & (c), LSD, and Sched. II - 3rd or sub. offense (PWID Fentanyl)).
Defendants Chief of Police Brock and Sheriff Rhodes are subject to summary dismissal. because no facts are alleged as to personal involvement and supervisory liability. In a § 1983 action, Plaintiff must allege that an individually personally acted in alleged violations. Generally, vicarious liability or respondeat superior is not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. See Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor liability under § 1983:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices,”; and
(3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984). Plaintiff has failed to state a claim as to Defendants Brock and Rhodes.
Plaintiff's request for relief includes release and dismissal of charges, as well as monetary damages. (ECF No. 11 at 13). Plaintiff has already been instructed that to the extent Plaintiff seeks release as relief by the dropping of charges in this civil rights action, he cannot receive such relief in a § 1983. See Heck v. Humphrey, 512 U.S. at 481 (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); and Johnson v. Ozmint, 567 F.Supp.2d 806, 823 (D.S.C. 2008) (release is not a remedy available under 42 U.S.C. § 1983).
Plaintiff alleges he is essentially kidnapped due to excessive bond. Plaintiff does not connect any named defendant with this allegation.
Plaintiff alleges he was approached, accosted, searched, and arrested with a charge of “asleep” “on a roadway” by Defendant Barry and her partner. (ECF No. 11 at 5). Plaintiff alleges he was not on a roadway but in a private parking lot. (ECF No. 11 at 5). Plaintiff alleges the body cam and dash cam will “prove this illegal, unconstitutional act.” (ECF No. 11 at 5-6). Plaintiff alleges the vehicle on private property should not have been subject to being towed and searched. Plaintiff alleges Barry violated his Fourth Amendment rights with an illegal search and seizure “resulting in my being charged with narcotics found in a vehicle in which I was merely a passenger.” (ECF No. 11 at 6). Plaintiff alleges Barry was not acting under a warrant on August 30, 2023. (ECF No. 11 at 7). Plaintiff alleges “as the arrest was incorrect, everything following too was hence illegal.” (ECF No. 11 at 7).
At this procedural stage, Plaintiff has stated allegations sufficient to surpass summary dismissal only against Defendant Barry. As discussed above, Defendants Prock and Rhodes are subject to summary dismissal for failure to state a claim upon which relief can be granted.
RECOMMENDATION
Accordingly, it is recommended that the District Court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Prock and Rhodes 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 Defendant Barry.
It is recommended that this action be partially 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).