Opinion
C/A No. 4:19-2114-RMG-TER
02-12-2020
Robert L. Mitchell, #140920, a/k/a Robert Lee Mitchell, a/k/a Robert Mitchell, Plaintiff, v. Scott Lewis, C. Hindenburg, Officer Jacobs, Defendants.
Report and Recommendation
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).
This 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 alleges for a few hours he was without water to flush the toilet in his cell. Plaintiff alleges metal plates on windows violate his constitutional rights. Plaintiff alleges he receives no copies of legal material, but does not plead with specificity what injury occurred as a result of no copies. (ECF No. 2).
Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and gave Plaintiff an opportunity to file an Amended Complaint. (ECF No. 7). Plaintiff filed a Motion to Strike the order giving him such opportunity. (ECF No. 10). The undersigned denied the Motion on September 10, 2019 and ordered Plaintiff to file an Amended Complaint in compliance with the court order. (ECF No. 14). Instead of filing an Amended Complaint, Plaintiff appealed the undersigned's order, arguing the order introduced scandalous matter, and filed a Motion for Judgment on the Pleadings. (ECF Nos. 20, 23). On November 6, 2019, the district judge overruled Plaintiff's appeal and objections and ordered Plaintiff to file an amended complaint to cure the deficiencies previously detailed in the undersigned's order. (ECF No. 20). Plaintiff filed objections to the district judge's order. (ECF No. 24). Plaintiff did not file an Amended Complaint.
Plaintiff was twice informed regarding deficiencies and given notice and opportunity to amend his complaint. He failed to avail himself of such opportunity and did not file an Amended Complaint; the deficiencies persist and this action is subject to summary dismissal.
To the extent Plaintiff alleges he was denied right to access to court because he was denied copies by prison staff, 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 in order 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 has not alleged specifically what claim he is referring to or how such claim was non-frivolous. Plaintiff was given an opportunity to amend and failed to avail himself of such.
Plaintiff has failed to allege facts that raise other claims to a constitutional magnitude. Plaintiff alleges he filed a grievance about his cell water being turned off for "hours" where Plaintiff could not flush the toilet and was forced to eat lunch while smelling the toilet. (ECF No. 1 at 18). An inmate complaining about prison conditions must show that the challenged conditions resulted in a serious deprivation of a basic human need which, in turn, resulted in serious or significant physical or mental harm. Strickler v. Waters, 989 F.2d 1375 (4th Cir.1993). Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Lack of cell water service for a limited time does not rise to the level of a deprivation of a basic need that the Constitution prohibits. See Colberth v. Olson, No. 4:09-3213-JFA-TER, 2011 WL 976737, at *1 (D.S.C. Mar. 17, 2011). The mere fact that Plaintiff did not have running water in his cell for a period of time does not amount to a constitutional violation. Gibert v. Anderson Cty. Sheriff's Office, No. 0:06-1853-DCN-BM, 2007 WL 328840, at *8 (D.S.C. Feb. 5, 2007)(collecting cases). The smell from not flushing the toilet for several hours does not rise to the level of a constitutional violation. See Kershaw v. Abraham, No. 4:18-1176-BHH-TER, 2018 WL4101853, at *2 (D.S.C. May 22, 2018), report and recommendation adopted, 2018 WL 4095577 (D.S.C. Aug. 28, 2018).
Plaintiff alleges he filed a grievance asking to be provided with the policy on and the person who authorized steel covering/metal plates on windows. To the extent Plaintiff is attempting to allege a conditions of confinement claim, such allegation regarding a metal plate on window is not of a constitutional magnitude as it is "inadequately severe to deny the minimal civilized measures of life's necessities." Wright v. Lassiter, No. 1:18-CV-90-FDW, 2018 WL 4186418, at *10 (W.D.N.C. Aug. 30, 2018)(plaintiff there was unable to view outside of window due to a metal plate).
Defendant Lewis is subject to summary dismissal additionally 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;Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984). As filed, the Complaint does not indicate any actual personal involvement by Defendant Lewis and does not allege facts to meet the supervisory liability exception. Plaintiff did not amend his complaint to attempt to correct these deficiencies after notice and opportunity.
(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.
To the extent Plaintiff is suing in regard to the SCDC grievance process, there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process and that any pending motions be deemed moot.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend twice and has failed to cure deficiencies by filing an amended complaint.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 12, 2020
Florence, South Carolina
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
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).