Opinion
C/A 6:21-cv-02713-JD-KFM
12-22-2021
Cederick Wise, Plaintiff, v. Sharama Jefferson, Roosevelt Reeves, Reginald Cooper, Travis Guest, Albert Mackie, Timothy Clark, Wilfredo Martell, John Doe 1, Sherman Anderson, Defendants.[1]
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on September 24, 2021 (doc. 6). By Order filed November 8, 2021, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 19). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 13). On November 29, 2021, the plaintiff's amended complaint was entered on the docket (doc. 21). Because the plaintiff's amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
ALLEGATIONS
The plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action alleging that the defendants have violated his constitutional rights (doc. 21). The plaintiff alleges that he is a Methodist Christian adherent, which is a sincere religious belief (id. at 14). The plaintiff contends that he was able to attend Methodist faith group services and use his bible until he was placed on segregated detention (“SD”) (id.). The plaintiff alleges that Ms. Jefferson sent him to lock-up for no reason on August 30, 2019, by fabricating an incident report for disciplinary charges for which he was later found “not guilty” (id. at 15, 20, 21). The plaintiff requested his Bible while on SD, but was not provided his Bible, which prevented the plaintiff from practicing his religion (id. at 15-16, 18-19). This allegedly violated the plaintiff's equal protection rights, because all other S.D. inmates were allowed their religious texts (id. at 15-16, 23). The defendants also violated SCDC policy, which allows inmates in the restricted housing unit (“RHU”) to have a bible (id. at 16).
The plaintiff alleges supervisory liability against defendants Capt. Mackie, Lt. Guest, Mr. Martell, and Mr. Clark because they were negligent in supervising the other defendants who violated the plaintiff's rights, as well as that Mr. Martell and Mr. Clark failed to perform their required security checks of the RHU (id. at 16-17, 18-20, 26-27). The plaintiff reported to these defendants that he had been denied his Bible each time they passed by his cell in the RHU (id. at 17, 18, 20). The plaintiff also requested blank grievance forms from Capt. Mackie and Lt. Guest, but none were provided (id.). The plaintiff also alleges supervisory liability against the defendants (including John Doe 1) based upon wrongfully denied grievances (id. at 27-29). Because the plaintiff was on SD, he was unable to be a part of the pre-release program, which he contends pushed back his max-out date (id. at 17-18). The plaintiff contends that being placed on crisis intervention in a strip out cell in only his boxers was cruel and unusual punishment (id. at 18, 22, 24). The plaintiff also contends that being placed on crisis intervention without his property was also a violation of SCDC Policy and his due process rights (id. at 16, 22). The plaintiff was also denied access to his prescription eye glasses, adequate showers, his toothbrush, his “medical shoes and socks”, and his heart healthy diet (id. at 23, 24-26). He further contends that the defendants threw away all of his property when he was placed in the strip out cell (id. at 23, 25-26).
For injuries, the plaintiff alleges emotional distress and mental anguish (id. at 6). For relief, the plaintiff seeks money damages (id. at 29-31).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied 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). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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, 391 (4th Cir. 1990).
This case is filed pursuant to 42 U.S.C. § 1983, which “‘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) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege 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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, the plaintiff's allegations that his rights were violated because he was prevented from participating in a pre-release program (doc. 21 at 17-18) are subject to dismissal in this matter because the plaintiff seeks relief with respect to that claim in another case. See Wise v. Kendall, et al., C/A No. 6:21-cv-03478-JD-KFM (D.S.C.).
Property Claim
In his amended complaint, for the first time, the plaintiff alleges that when he was placed into crisis intervention, the defendants destroyed his personal property (doc. 21 at 23, 25-26). The United States Supreme Court has explicitly recognized that deprivations of an inmate's personal property do not rise to the level of a constitutional violation so long as there are adequate state law post-deprivation remedies. See Daniels v. Williams, 474 U.S. 327 (1986); Mora v. City of Gaithersburg, 519 F.3d 216, 230-31 (4th Cir. 2008) (holding that deprivations of personal property by corrections officials are not constitutional violations so long as there are post-deprivation remedies). South Carolina has such remedial procedures in place. See S.C. Code § 15-78-10, et seq. As such, the plaintiff cannot pursue his deprivation of property claim in this court.
First Amendment Claim
The plaintiff contends that he was prevented from exercising his religion because he was not allowed to have his Bible while on crisis intervention (doc. 21 at 15-16, 18-19). The First Amendment states that “Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. Known as the free exercise clause, this provision guarantees citizens the right to freely exercise their religious beliefs without government interference. To state a free exercise claim under the First Amendment, a plaintiff must allege facts sufficient to show that he held a sincere religious belief and that the official action or regulation substantially burdened his exercise of that belief. Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989). Here, the plaintiff has failed to allege any facts to show how the defendants burdened the exercise of his religion by temporarily preventing access to his property (including his Bible) while on crisis intervention in a strip out cell for twenty-four days. The United States Supreme Court has defined a substantial burden as one that “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 718 (1981). Moreover, courts in this circuit have noted that temporarily being denied access to a Bible is not a substantial burden on religion for purposes of free exercise claims. See Herron v. McCoy, et al., C/A No. 7:19-cv-00049, 2019 WL 527517, at *2 (W.D. Va. Feb. 11, 2019) (dismissing free exercise claim by prisoner because he had not shown that “his inability to possess his Bible for a few weeks” “substantially burdened his practice of sincere, religious beliefs”); Johnson v. Fields, et al., C/A No. 2:14-cv-00038-FDW, 2017 WL 5505991, at *13 (W.D. N.C. Nov. 16, 2017) (noting that the temporary removal of access to a Bible for twenty-four days did not substantially burden religious exercise as the plaintiff could still worship through prayer and the lack of a Bible did not force the plaintiff to violate his religious principles). As such, the plaintiff's First Amendment claim is subject to summary dismissal.
Due Process Claim
The plaintiff also alleges that his Fourteenth Amendment rights were violated by the defendants when he was falsely imprisoned and placed on S.D. status and later placed in crisis intervention based upon a fabricated incident report without a hearing (doc. 21 at 16, 20, 22). To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process. See Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). First, to the extent the plaintiff seeks damages based upon his custody classification, seeking transfer to a different custody level (or disagreement with his placement on crisis intervention), the claim is subject to dismissal because prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (finding no constitutional right under the due process clause to a particular security classification or prison placement), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Indeed, as noted by the Supreme Court, a change in a prisoner's conditions of confinement only gives rise to a federally-protected liberty interest if it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483, 485 (finding no liberty interest when inmate placed in segregated confinement). Here, the plaintiff's complaint does not allege an atypical or significant hardship. Moreover, the plaintiff has failed to allege a constitutionally cognizable injury with respect to his time on crisis intervention - asserting that he suffered from mental anguish. See Williams v. Pruitt, C/A No. 8:13-cv-01812-JMC, 2013 WL 4500436, at *2 n.2 (D.S.C. Aug. 19, 2013) (finding that there is no federal constitutional right to be free from emotional distress, mental anguish, or psychological stress) (citing Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985), cert denied, 480 U.S. 916 (1987); Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989)); see also Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (finding that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))). As such, the plaintiff's due process claim is subject to summary dismissal.
Equal Protection Claim
The plaintiff's equal protection claim against the defendants - that he was treated differently from other S.D. inmates because all of the other S.D. inmates were allowed to have religious texts no matter their religion (doc. 21 at 16-16, 23) - is also subject to summary dismissal. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Fourth Circuit has held that
[t]o succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) (internal citations omitted). Here, the plaintiff alleges that he was treated differently than all other inmates on S.D. (because they were allowed to keep their religious texts while on SD); however, he has not alleged that he was treated differently than other inmates based upon a suspect class - as being a prisoner is not a suspect classification. See Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013) (noting that circuit precedent clearly holds “that prisoners are not a ‘suspect class'”). As such, the plaintiff's equal protection claim is subject to summary dismissal.
Conditions of Confinement Claims
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove that he was deprived of a basic human need and that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
The plaintiff's complaint contains a litany of conditions of confinement allegations relating to his temporary placement on crisis intervention - including that he was denied access to hygiene products, cleaning supplies, his regular mattress, showers, his special shoes, his heart healthy diet, and his eyeglasses (doc. 21 at 18, 22, 24). These allegations, however, do not rise to the level of a constitutional violation. See Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Wilson, 501 U.S. at 298) (noting that the Constitution does not mandate comfortable prisons, and only deprivations which deny the minimal civilized measure of life's necessities are sufficiently grave to provide the basis of a § 1983 claim); Thompson v. Brown, C/A No. 3:11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). Additionally, as previously noted, to the extent the plaintiff asserts unconstitutional conditions of confinement claims based upon his placement on crisis intervention because of a false incident report, his allegations are subject to dismissal because prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt, 459 U.S. at 468 (finding no constitutional right under the due process clause to a particular security classification or prison placement). Moreover, as noted above, the plaintiff has failed to allege a constitutionally cognizable injury with respect to his conditions of confinement claim - asserting that he suffered from mental anguish. See Williams, 2013 WL 4500436, at *2 n.2. As such, in light of the foregoing, the plaintiff's conditions of confinement claims are subject to summary dismissal.
The plaintiff's claims regarding his heart healthy diet at Broad River are being addressed in a separate action. See Wise v. Inmate Grievance Coordinator Solomon, et al., C/A No. 6:21-cv-02308-JD-KFM.
Deliberate Indifference to Medical Needs Claim
Liberally construed, the plaintiff also contends that the defendants have denied him medical treatment in the form of access to his “medical shoes and socks” and eyeglasses (doc. 21 at 23, 24-26). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In order to state a claim, a plaintiff must show a serious medical need as well as that the defendant “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs. First, his vague and conclusory allegations that he was not provided his “medical shoes and socks” or his eye glasses do not plausibly allege a serious medical need. Moreover, although the plaintiff alleges that he requested access to his property (including his eye glasses and medical shoes and socks), the plaintiff has not alleged that he was denied a visit to medical - and to the extent the plaintiff asserts that medical would not prescribe his “necessary” eye glasses and medical shoes and socks, it appears that the plaintiff preferred a different “treatment” than provided; however, the plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). As such, the plaintiff's deliberate indifference claim fails to state a claim for relief.
Retaliation Claim
The plaintiff's amended complaint also alleges that his placement on S.D. was retaliation to prevent his participation in a prerelease program and because of the plaintiff's engagement in protected activity (doc. 21 at 17-18, 20, 21). Where a plaintiff alleges that an act was taken in response to the exercise of a constitutionally protected right, the plaintiff must allege that (1) he engaged in “protected First Amendment activity, (2) [the defendant] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and [the defendant's] conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). Because conduct that “tends to chill the exercise of constitutional rights might not itself deprive such rights, ” a plaintiff can plausibly allege a retaliation claim without alleging an actual deprivation of his First Amendment rights. Constantine, 411 F.3d at 500. With respect to causation, a plaintiff must plausibly allege knowledge by the defendant of a plaintiff's protected activity as well as that the retaliation took place within some “temporal proximity” of that activity. Id. at 501; see Germain v. Bishop, C/A No. TDC-15-1421, 2018 WL 1453336, at *14 (D. Md. Mar. 23, 2018). A prisoner must present more than conclusory accusations of retaliation, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996).
Here, even liberally construed, the plaintiff's retaliation claim is unclear. It appears that he may be alleging that his placement in S.D. was retaliation for filing a grievance, but there are no allegations regarding which defendant was involved in or aware of the prior grievance or the alleged retaliation, the timing of the protected activity, and alleged retaliatory acts, and no allegations providing a plausible causal link between the protected activity and alleged retaliatory act. As such, the plaintiff's retaliation claim is also subject to dismissal.
Denial of Access to the Courts Claim
The plaintiff, in passing, also alleges that he has been denied access to the courts because he did not have access to his legal materials while on S.D. and because he was not able to file grievances and complaints (doc. 21 at 18). Such a claim for denial of access to the courts must be pleaded with specificity. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Moreover, it is well-settled that an inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). In any event, to maintain a valid constitutional claim for denial of access to the courts, a prisoner must show actual injury. Cochran, 73 F.3d at 1317; see Lewis, 518 U.S. at 349. The plaintiff has not plausibly alleged actual injury. Further, the filings in this case - and in seven others filed within this district (within the last year) - belie the plaintiff's claim that he lacks access to the court. See Wise v. Poindexter, et al., C/A No. 6:21-cv-03475-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-03477-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-03478-JD-KFM (D.S.C.) (pending); Wise v. Inmate Grievance Coordinator Solomon, et al., C/A No. 6:21-cv-02308-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-02590-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-00164-JD, 2021 WL 3410057 (D.S.C. Aug. 4, 2021) (dismissed); Wise v. Guest, etal., C/A No. 6:20-cv-04161-JD, at doc. 42 (D.S.C. Apr. 8, 2021) (dismissed). Accordingly, in light of the foregoing, the plaintiff's denial of access to the courts claim is subject to dismissal.
Supervisory Liability
The plaintiff specifically seeks supervisory liability against Maj. Clark, Mr. Martell, Lt. Guest, and Capt. Mackie, asserting that they should have prevented the remaining defendants from violating the plaintiff's rights (doc. 21 at 16-17, 18-20, 26-27). The plaintiff's supervisory claims, however, are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that “Section 1983 will not support a claim based on a respondeat superior theory of liability” (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was “so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;” and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013). Here, the plaintiff has not alleged that these defendants were on notice that the plaintiff's rights were being violated - and his grievances (filed after the incidents in question) do not satisfy that element of a supervisory liability claim. Likewise, the plaintiff's assertions that he requested his Bible (or other items) from these defendants when they came by his cell do not provide a basis for supervisory liability and he may not seek supervisory liability against these defendants based upon their denial of his grievances because an inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). As such, the plaintiff's supervisory liability claim is subject to summary dismissal.
Violation of SCDC Policy Claims
Finally, to the extent the plaintiff asserts that the defendants have violated his constitutional rights by violating various SCDC policies (doc. 21 at 16, 22), he has not alleged a plausible claim because a violation of an SCDC policy or rule, on its own, does not constitute a violation of the plaintiff's constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); Johnson v. S.C. Dep't of Corrs., C/A No. 3:06-cv-02062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (The plaintiff's allegation that defendants did not “follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”). As such, the plaintiff's claims regarding alleged violations of SCDC policy are subject to summary dismissal.
Abandoned Claims
It appears that the plaintiff has abandoned his oath of office claim (see doc. 21). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 19 at 13 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claim. To the extent the plaintiff did not intend to abandon the oath of office claim, for the reasons set forth in the court's prior order, this claim would still be subject to summary dismissal (see doc. 19 at 12).
RECOMMENDATION
By order issued November 8, 2021, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated November 8, 2021 (doc. 19). Therefore, the undersigned recommends that the district court decline to give the plaintiff further leave to amend his complaint and dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed 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)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g).
The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
Greenville, 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).