Opinion
C. A. 8:21-cv-03683-CMC-JDA
02-01-2022
John McKinney, Plaintiff, v. South Carolina Department of Corrections; SCDC Contracted Medical Provider; SCDC Director, Bryan Stirling; Terre K. Marshall; Cecilia Reynolds, Warden/Director of Lee; April Clark, SCDC Medical Director; Harriet Bailey, West P.I. Supervisor; Stokes, RN Care Provider; Burnett, RN Care Provider; Blake, RN Care Provider, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
John McKinney (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Plaintiff is a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the MacDougall Correctional Institution.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02, D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and to submit findings and recommendations to the District Court. Upon review, the undersigned finds that this action is subject to summary dismissal for the reasons below.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983. [Doc. 1.] By Order dated November 30, 2021, the undersigned directed Plaintiff to file the necessary information and paperwork to bring the case into proper form for possible service, including properly completed service documents. [Doc. 7.]
That same day, the undersigned entered an Order regarding amendment to notify Plaintiff that this action was subject to summary dismissal for reasons identified by the Court in its Order. [Doc. 8.] The Court noted, however, that Plaintiff may be able to cure the pleading deficiencies of his Complaint and granted Plaintiff twenty-one days to file an amended complaint. [Id. at 1, 14.] Further, Plaintiff was specifically warned as follows:
Specifically, the undersigned noted that, although Plaintiff named Defendants that are not proper Defendants in this § 1983 action and asserted claims that are not cognizable in this § 1983, he may be able to proceed with this action on a claim for deliberate indifference against any properly named Defendants, but only if he filed an amended complaint that complies with Rule 8 of the Federal Rules of Civil Procedure. [Id. at 1-2.]
If Plaintiff fails to file an amended complaint that corrects those deficiencies identified [in the Court's Order], this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915.[Id. at 15.] On December 27, 2021, after the expiration of the deadline the Court set to bring the case into proper form and to file an amended complaint, the Court received a motion filed by Plaintiff that was construed as a motion for copies at no expense. [Doc. 11.] However, Plaintiff did not file an amended complaint or otherwise comply with the Court's Orders.
The Court then entered Orders dated January 3, 2022, denying Plaintiff's motion for copies, directing Plaintiff's attention to the Court's prior Orders, and again instructing Plaintiff to bring the case into proper form for possible service of process and to file an amended complaint. [Doc. 13.] The undersigned advised Plaintiff as follows:
[I]f [Plaintiff] fails to comply with the Order regarding Amendment within 21 days from the entry of this Order, his case will be subject to dismissal.[Id. at 1.] Nevertheless, Plaintiff has not responded to the Court's Orders, he has not filed properly completed service documents, he has not filed an amended complaint, and he has failed to cure the deficiencies identified by the Court in its Order regarding amendment.
Factual Allegations
Plaintiff makes the following allegations in his Complaint. [Doc. 1.] Plaintiff alleges Defendants violated his rights under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. [Id. at 5.] Specifically, Plaintiff's claims arise from an injury he sustained on August 25, 2014, while working as an inmate at Lee Correctional Institution (“Lee”) in the “West P.I.” [Id. at 6.] Plaintiff alleges that, prior to the 2014 injury, he suffered “critical long term [ ] neck [and] mid and lower back injuries from a state van accident” in November 1992, resulting in spine and disc complications. [Id. at 7.] Then, on August 25, 2014, while working at Lee with his supervisor, Harriet Bailey, he was again injured when “[im]properly stacked [600] six hundred pound product bags approximately five to six [feet] high shifted and immediately fell on Plaintiff as they walked near.” [Id.] Plaintiff was crushed and pinned to the floor and he suffered a dislocated hip and injuries to his lower back, leg, and ankle. [Id.] Bailey and another inmate immediately took Plaintiff to medical. [Id.]
According to Plaintiff, Defendants Reynolds, Burnett, Blake, Stokes, and Bailey, along with individuals named Anderson and Neville who are not named as Defendants, each were deliberately indifferent to Plaintiff's medical needs. [Id. at 8.] Specifically, Plaintiff alleges these Defendants “defied statewide work injury outside hospitalization protocol policy in an effort to downplay Plaintiff's injuries” and they manipulated accident reports to prevent accident liability and workers compensation liability payments. [Id.]
Plaintiff alleges that Reynolds, Bailey, Neville, Stokes, Blake, Burnett, Anderson, and Clark, “were aware that they were breaching their medical provider license and contracted duties” when they conspired together to block Plaintiff from immediate outside hospitalization so he could receive x-rays, CT scans, and MRIs to determine the extent of his injuries. [Id.] Plaintiff contends Defendants intentionally refused to send Plaintiff to an outside hospital for treatment and did not permit him to see Dr. Neville until 15 days after he was injured. [Id.] Despite suffering pain, Plaintiff was given only ibuprofen and forced to endure chronic back, leg, hip, and ankle pain until July 8, 2021, when he underwent an MRI, which showed Plaintiff's left lumbar was injured. [Id. at 8-9.] Plaintiff notes that he was seen by SCDC doctors on October 23, 2020, and April 19, 2021, but he alleges “those x-rays and MRI [assessments were] far out[side] of the scope of Plaintiff getting adequate medical treatment from his August 25, 2014, accident injuries.” [Id. at 9.]
Plaintiff purports to sue SCDC and West Prison Industry for $10 million “for the negligent stacking of [600] pound product bags by their forklift operators.” [Id.] Further, Plaintiff contends that, as of November 1, 2021, he has yet to be given an “adequate MRI or [CT] Scan” and has not been treated at the Carolina Spine institute due to Defendant's conduct. [Id.]
For his injuries, Plaintiff alleges he suffered a hip dislocation, right leg and ankle damage, vertebrae damage, laminectomy and forminotomy to the spine, palpable snap of the SI joint when turning, herniated disc, chronic SI joint problems, impairment to the lumbar spine and SI joint, neck pain, and mid and lower back injuries. [Id. at 10.] Plaintiff also alleges he is “physically and mentally [scarred]” and suffered medical malpractice. [Id.] For his relief, Plaintiff requests a jury trial, $10 million in damages, and workers compensation for his injuries and three-year delay of treatment. [Id.]
APPLICABLE LAW
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, Plaintiff is a prisoner under the definition in 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 Plaintiff had prepaid the full filing fee, this Court would be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his 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, 93-94 (2007). 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 (4th Cir. 1990). Even under the less stringent standard applicable to pro se pleadings, the Complaint is subject to summary dismissal.
Although the Court must liberally construe the pro se pleadings and a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). As noted, although the Court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it “failed to contain any factual allegations tending to support his bare assertion”). Thus, although a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
DISCUSSION
Rule 41 Dismissal
As noted, by Orders dated November 30, 2021, and January 3, 2022, the undersigned directed Plaintiff to file the necessary information and paperwork to bring the case into proper form for possible service. [Docs. 7, 13.] General Order In Re: Procedures in Civil Actions Filed by Prisoner Pro Se Litigants, No. 3:07-mc-5014-JFA, Doc. 1 at 2 (D.S.C. Sept. 18, 2007), provides, “[i]f the prisoner does not comply with [an] order to bring the case into proper form, the case may be forwarded to the assigned District Judge . . . for an order of dismissal without prejudice.” Id. at 3.
Here, Plaintiff has not filed properly completed service documents, despite being instructed to do so in the Court's Orders noted above. Further, Plaintiff has not responded to the Court's most recent Order, dated January 3, 2022, and the time for response has lapsed. Plaintiff was warned numerous times that this action may be subject to dismissal for failure to respond to the Court's Orders and for failure to bring the case into proper form.
Because Plaintiff has not responded to the Court's Order and has not filed properly completed service documents, he has failed to prosecute this case and has failed to comply with multiple Orders of this Court. Because Plaintiff has already ignored this Court's prior Orders and deadlines, sanctions less drastic than dismissal would not be effective. Accordingly, the case should be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962).
Dismissal for Failure to State a Claim
As an additional basis for dismissal, the undersigned recommends that this action be dismissed for failure to state a claim.
Plaintiff filed his Complaint 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). Plaintiff's Complaint is subject to summary dismissal for the reasons previously identified by the Court in its Order regarding amendment. [Doc. 8.]
Defendants entitled to dismissal
The named Defendants in this action are subject to dismissal because they are not proper parties subject to suit under § 1983 or because Plaintiff has failed to allege facts showing they were personally involved in the purported constitutional violations.
SCDC
First, Plaintiff appears to name SCDC as a Defendant in this action. [Doc. 1 at 1.] However, SCDC is subject to summary dismissal because it is not a person amenable to suit under § 1983. “As to SCDC, it is well-settled that an agency of the state is not a person within the meaning of § 1983, and thus is not a proper defendant.” Weddington v. SCDC, No. 8:08-cv-1652-GRA-BHH, 2009 WL 473510, at *2 (D.S.C. Feb. 24, 2009); see also Peoples v. SCDC, No. 8:07-cv-1203-CMC-BHH, 2008 WL 4442583, at *1 (D.S.C. Sept. 25, 2008) (same). Accordingly, SCDC should be dismissed from this action.
SCDC Contracted Medical Provider
Plaintiff appears to name as a Defendant SCDC Contracted Medical Provider, although he does not provide any further identifying information regarding this Defendant. [Doc. 1 at 1.] The undersigned notes that Plaintiff may have included this entity simply to identify the employer of other named individuals. In any case, SCDC Contracted Medical Provider is entitled to summary dismissal because Plaintiff appears to be referring to an entity that is not a person or to an unnamed group of people employed by SCDC. However, groups of people are not amenable to suit under § 1983. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding the medical department of a prison is not a person pursuant to § 1983); Witherspoon v. Matthews, No. 9:17-cv-0020-MGL-BM, 2017 WL 3283855, at *4 (D.S.C. July 14, 2017) (explaining unnamed groups of people are not amenable to suit under § 1983), Report and Recommendation adopted by 2017 WL 3263939 (D.S.C. Aug. 1, 2017); Dalton v. South Carolina Dep't of Corr., No. 8:09-cv-260-CMC-BHH, 2009 WL 823931, at *2 (D.S.C. Mar. 26, 2009) (dismissing the medical staff of SCDC and Prison Health Services as defendants because they were not persons).
Defendant Stirling
Plaintiff also names Bryan P. Stirling, who is the Director of SCDC. [Doc. 1 at 2.] However, Defendant Stirling is subject to summary dismissal. As an initial matter, Plaintiff makes no allegations in the Complaint about his direct involvement in the alleged unconstitutional conduct. Instead, Plaintiff makes only general, vague allegations about this Defendant's obligations over SCDC and the prisons at which Plaintiff has been incarcerated. “However, such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable § 1983 claim.” Tracey v. Nelson, No. 1:12-cv-1614-JMC-SVH, 2012 WL 4583107, at *2 (D.S.C. Aug. 31, 2012) (dismissing claims against the Governor of South Carolina and former director of SCDC), Report and Recommendation adopted by 2012 WL 4588205 (D.S.C. Oct. 1, 2012).
Further, construing Plaintiff's claims against Defendant Stirling as based on supervisory liability, the undersigned notes that the doctrine of respondeat superior is generally not applicable in § 1983 actions. 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.”); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). For a supervisory official to be held liable for constitutional injuries inflicted by his subordinates, certain criteria must be established. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Specifically, a plaintiff must show that the supervisory official was (1) actually or constructively aware of a risk of constitutional injury, (2) and deliberately indifferent to that risk, and (3) that an affirmative causal link exists between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Carter, 164 F.3d at 221. Here, the Complaint contains no plausible allegations against Defendant Stirling to demonstrate that he was aware of, or deliberately indifferent to, any risk of constitutional injury to Plaintiff. As such, the Complaint fails to state a claim upon which relief may be granted against Defendant Stirling, and he should be dismissed from this action on that basis. See Ford v. Stirling, No. 2:17-cv-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017).
Defendants Marshall, Reynolds, and Clark
Plaintiff names the following three Defendants in his Complaint: Terre K. Marshall, who is identified as the Deputy Director for SCDC Health Services; Cecilia Reynolds, who is identified as the Warden/Director of Lee; and April Clark, who is identified as the SCDC Medical Director. [Doc. 1 at 2-3.] However, these three Defendants are subject to summary dismissal for the same reasons that Defendant Stirling is entitled to dismissal. First, Plaintiff makes no allegations in the Complaint about their direct involvement in the alleged unconstitutional conduct, and instead he makes only general, vague allegations about their respective obligations over the prisons at which Plaintiff has been incarcerated. As noted, absent allegations of specific facts of personal involvement in the events giving rise to Plaintiff's claims, his Complaint is insufficient to state a cognizable § 1983 claim. Tracey, 2012 WL 4583107, at *2. Likewise, Plaintiff's claims against these Defendants fail under a theory of supervisory liability. Shaw, 13 F.3d at 798; Ford, 2017 WL 4803648, at *2. Accordingly, these three Defendants are entitled to dismissal from this action.
Defendants Bailey, Stokes, Burnett, and Blake
Finally, Plaintiff names his work supervisor, Harriet Bailey, and three “RN care providers” in his Complaint-Stokes, Burnett, and Blake. [Doc. 1 at 4.] In the body of the Complaint, Plaintiff also references other individuals, including Dr. Neville and Anderson, however, Plaintiff does not name these individuals in the caption of his Complaint.
In his Complaint, Plaintiff merely groups these Defendants together and makes only general, vague allegations collectively against them. However, “such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable § 1983 claim.” Tracey, 2012 WL 4583107, at *2. Because Plaintiff makes no factual allegations in the Complaint of personal involvement against these Defendants, they are entitled to summary dismissal. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.”); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (finding the complaint was subject to summary dismissal where plaintiff made no factual allegations against the named defendants within the body of the pleading).
Claims subject to dismissal
In addition to Defendants being entitled to dismissal from this action, the claims asserted in the Complaint are also subject to dismissal for the reasons below. As an initial matter, the undersigned observes that it is difficult to decipher precisely what causes of action Plaintiff is asserting. Plaintiff references incidents of negligence, medical malpractice, delay in medical treatment, and even workers compensation. At its core, however, Plaintiff's Complaint appears to assert a claim for deliberate indifference due to Defendants' “fail[ure] to provide outside medical care after a critical work injury.” [Doc. 1 at 12.] And, Plaintiff contends, his treatment for his injuries was delayed due to Defendants' purported systematic interference, including false statements, frivolous replies to his requests, and “acts to elude direct guilty regarding adequate medical treatment at the time of the [injuries].” [Id.] Plaintiff's deliberate indifference claim may be cognizable if he files an amended complaint. Plaintiff's remaining claims, however, are subject to dismissal.
Negligence
First, Plaintiff purportedly asserts a claim for negligence and/or medical malpractice. [Doc. 1 at 7-9.] However, negligence, in general, is not actionable under 42 U.S.C. § 1983. See Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987); Pink v. Lester, 52 F.3d 73, 75-78 (4th Cir. 1995). “Negligence or malpractice in the provision of medical services does not constitute a claim under § 1983” because such claims fail to satisfy the deliberate indifference standard of a constitutional claim. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Thus, to the extent that Plaintiff alleges negligence and/or medical malpractice, his claims are subject to dismissal from this action. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”).
Violation of Prison Policy
Next, to the extent Plaintiff contends he is entitled to damages because Defendants violated prison policy, any such claim is subject to dismissal as well. [Doc. 1 at 8 (Defendants “defied statewide work injury outside hospitalization protocol policy”).] Generally, violations of prison policies and/or procedures do not rise to the level of a constitutional violation. See United States v. Caceres, 440 U.S. 741 (1978); Riccio v. Cty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (“If state law grants more procedural rights than the Constitution would otherwise require, a state's failure to abide by that law is not a federal due process issue.”); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (holding violations of prison policies that fail to reach the level of a constitutional violation are not actionable under § 1983). Because Plaintiff has failed to allege facts giving rise to a constitutional violation, his contention that Defendants violated prison policy fails to state a claim for relief.
Workers' Compensation Claim
Plaintiff appears to assert that he is entitled to payments for a workers' compensation claim. [Doc. 1 at 10.] It is unclear whether Plaintiff has sought any relief through the proper channels under state law for a workers' compensation claim. To the extent Plaintiff wishes to assert a claim for workers compensation, his “exclusive remedy is a claim under the South Carolina Workers' Compensation Act . . ., over which the South Carolina Workers' Compensation Commission has exclusive jurisdiction.” Matthews v. E. I. du Pont de Nemours & Co., No. 4:16-cv-02934-RBH, 2018 WL 5978111, at *3 (D.S.C. Nov. 13, 2018); see also Dewese v. Sci. Applications Int'l Corp., No. 2:11-cv-3024-DCN-BHH, 2012 WL 1902264, at *3 (D.S.C. May 2, 2012) (“The South Carolina General Assembly has . . . vested the South Carolina Workers' Compensation Commission with exclusive original jurisdiction over an employee's work-related injuries.”), Report and Recommendation adopted as modified by 2012 WL 1909353 (D.S.C. May 25, 2012). To the extent that Plaintiff is attempting to challenge any denial by the South Carolina Workers' Compensation Commission of a workers' compensation claim, “such a challenge is not cognizable under § 1983 because it does not ‘aris[e] under the Constitution, laws, or treaties of the United States.'” Barr v. N. Carolina Dep't of Pub. Safety, No. 5:20-cv-00031-MR, 2020 WL 5073960, at *2 (W.D. N.C. Aug. 25, 2020). In any case, “[t]his federal court does not have jurisdiction to review the denial of Plaintiff's request for workers compensation benefits.” Martin v. Byars, No. 6:13-cv-3516-TMC-KFM, 2014 WL 11511733, at *3 (D.S.C. Mar. 24, 2014), Report and Recommendation adopted by 2014 WL 11497851 (D.S.C. Sept. 5, 2014), appeal dismissed, 589 Fed.Appx. 217 (4th Cir. 2015). Any such claim is therefore subject to dismissal.
Deliberate Indifference
Finally, Plaintiff presents numerous cursory allegations about his purported injury from 2014 and the medical care he received for that injury. Liberally construed, the Complaint appears to allege a claim for deliberate indifference. However, Plaintiff fails to identify any specific individual responsible for the deprivation of any constitutional right, and he fails to allege specific facts to support the denial of any constitutional right. Rather, he makes only general, vague allegations. As such, Plaintiff has failed to state a claim for relief that is plausible and any such claims are subject to dismissal unless Plaintiff files an amended complaint.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action without further leave to amend and without issuance and service of process pursuant to Rule 41(b) for failure to prosecute or comply with the Court's Orders and/or pursuant to 28 U.S.C. § 1916A for failure to state a claim.
As noted, Plaintiff was directed to file an amended complaint to cure the deficiencies noted by the Court in its Order dated November 30, 2021. [Doc. 8.] Plaintiff has not filed an amended complaint nor has he attempted to cure the deficiencies in his original pleadings. Accordingly, the undersigned recommends dismissal without further leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice).
IT IS SO ORDERED.
Plaintiff's attention is directed to the important notice on the next page.
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 250 East North Street, Suite 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).