Opinion
C. A. 4:23-6617-MGL-TER
03-18-2024
Reggie Manning, Jr., #342056, Plaintiff, v. Lt. Swisher, Defendant.
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. The court notified Plaintiff twice of deficiencies in his Complaint and gave Plaintiff an opportunity to amend the Complaint. (ECF Nos. 9, 17). Plaintiff did not file an amended complaint.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. (ECF No. 1 at 4). 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 First Amendment rights were violated. (ECF No. 1 at 4). Plaintiff sues only one Defendant. Plaintiff alleges the violation happened on June 3, 2023, at 11:40 A.M. (ECF No. 1 at 5). Plaintiff alleges the injury sustained is emotional distress and “have suffered, am suffering, and will continue to suffer.” (ECF No. 1 at 6). As relief, Plaintiff requests 300 million dollars total. (ECF No. 1 at 6).
Plaintiff alleges he asked a nonparty to get Defendant Swisher to come to his cell after mealtime because Plaintiff needed mental health care after his milk was dropped by staff, was not replaced, and was not cleaned up. Plaintiff also wanted to find out if Johnson(a nonparty) had done an incident report for an unrelated matter. Plaintiff alleges Swisher came and stated that Johnson was the one who misplaced the report and was the person Plaintiff would need to deal with regarding the report situation. (ECF No. 1-1 at 1).
Plaintiff alleges vaguely that he had a deadline and needed the report as soon as possible. (ECF No. 1-1 at 1). Plaintiff may be attempting to state a claim for denial of access to court. In Lewis v. Casey, 518 U.S. 343, 349 (1996), the Supreme Court held that a prisoner must show some actual injury resulting from a denial of access to allege a constitutional violation. This requirement can be satisfied by demonstrating that a non-frivolous legal claim was frustrated or impeded by some actual deprivation of access. Id. at 352-53. A claim for failure to provide access to courts must be pleaded with specificity. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Plaintiff did not plead any facts about his legal claim or about the specifics of the deadline allegedly at risk, and Plaintiff failed to file an Amended Complaint to cure the deficiency. Moreover, it appears a nonparty is allegedly responsible for the missing report and not Defendant Swisher. Plaintiff has failed to state a claim upon which relief can be granted as to any liberally construed denial of access claim.
Plaintiff alleges Swisher stated “you're not ready for 1800 pounds coming into your room.” (ECF No. 1-1 at 1). Plaintiff alleges conclusorily that this alleged verbal threat was a form of retaliation. Plaintiff alleges “therefore, I fault Lt. Swisher for damages caused by threat of retaliation.” (ECF No. 1-1 at 1). As to Plaintiff's claims regarding a verbal threat from an officer, liberally construed Plaintiff may be attempting to allege an Eighth Amendment claim. As plead, it does not appear such facts rise to a claim of constitutional magnitude. Sloan v. Lee, No. 13-3843, 2015 WL 273219, at *18 (D. Md. Jan. 20, 2015)(citing Pink v. Lester, 52 F.3d 73, 75 (4th Cir.1995)(verbal abuse does not state a constitutional claim), McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir.2001), Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005)). Further, Plaintiff does not identify any adverse action that Defendant took against him that resulted from any First Amendment exercise,and thus Plaintiff fails to state a claim for retaliation.
To establish a § 1983 claim for First Amendment retaliation, Plaintiff must allege facts showing that (1) he engaged in protected First Amendment activity, (2) “the alleged retaliatory action adversely affected his protected speech,” and (3) a but-for causal relationship existed between the protected activity and the retaliatory act. Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015).
Plaintiff fails to state a claim upon which relief could be granted as to these allegations.
RECOMMENDATION
It is recommended that the District Court dismiss Plaintiff's claims with prejudice under § 1915(e) and without issuance and service of process.
It is recommended that this action be dismissed without further opportunity 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).