Opinion
C/A 8:21-cv-01490-DCC-JDA
07-26-2021
Charles Nemon Vandross, Plaintiff, v. Warden Charles Williams, Deputy Warden John Palmer, Captain Daniel Harouff, Captain Debra Wilson, Mailroom Clerk Tamara Conwell, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court for a review of Plaintiff's pro se filing, which is construed as an action filed pursuant to 42 U.S.C. § 1983. [Docs. 1; 1-3.] Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is incarcerated at the Perry Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the pleadings for relief and submit findings and recommendations to the District Court. Having reviewed the pleadings in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
As discussed in detail below, although this action is construed as a civil rights action filed pursuant to 42 U.S.C. § 1983, Plaintiff contends that he is only seeking an order for injunctive relief and does not wish to proceed with a lawsuit on his underlying substantive claims at this time. [Docs. 1 at 1; 1-3 at 6.]
BACKGROUND
Plaintiff commenced this action on May 14, 2021, by filing a handwritten document that was styled as a complaint. [Doc. 1.] In the document, Plaintiff indicated that he filed this action to request a temporary restraining order (“TRO”) and/or a preliminary injunction. [Id. at 1.] By Orders dated May 21, and June 17, 2021, the undersigned directed Plaintiff to file a complaint on the standard court form and otherwise bring the case into proper form. [Docs. 5; 12.] Plaintiff has complied with the Court's Orders and this case is now substantially in proper form. Importantly, Plaintiff has filed a complaint on the standard court form, although he continues to maintain that he does not wish to proceed with a lawsuit at this time. [Doc. 1-3 at 6.] The Court construes the original handwritten filing [Doc. 1] and the standard court form [Doc. 1-3] together as the Complaint in this matter. However, the Court notes that the Complaint seeks only preliminary injunctive relief and does not appear to be intended as a lawsuit. Additionally, the undersigned has carefully reviewed Plaintiff's documents attached to his Complaint as well as other filings. [Docs. 1-1; 7; 8; 16.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on May 14, 2021. [Doc. 1-2 at 1 (envelope stamped received by prison mailroom on May 14, 2021).]
According to Plaintiff, Defendants have violated his rights under the Eighth Amendment, the Due Process Clause, and the Equal Protection Clause of the United States Constitution. [Doc. 1-3 at 4.] Specifically, Plaintiff alleges that he is being denied access to legal documents that he needs to prepare an appeal to the United States Supreme Court. [Doc. 1 at 1.] Plaintiff alleges that certain documents were delivered to him in his cell in the Restricted Housing Unit (“RHU”) in March 2021. [Id.] However, the documents were removed from his cell on April 6, 2021. [Id.] Plaintiff contends that Defendants Palmer and Harouff have refused to return his documents to him, constituting deliberate indifference. [Id.] Plaintiff alleges that he had a filing deadline with the Supreme Court of May 25, 2021, and that he was unable to adequately prepare. [Id. at 2.] Plaintiff alleges that he requested an extension of time within which to file his appeal, but has not received confirmation that the deadline has been extended, although he anticipates that the new deadline would be July 23, 2001. [Id.] Plaintiff makes other similar allegations about his concerns regarding access to legal documents, pens, paper, and other materials related to his pending appeals. [Id. at 2-9.] Finally, Plaintiff alleges that he has been approved for a transfer to Kirkland Correctional Institution and that, “[i]f this transfer happens within the next five (5) weeks, it will protect [his] United States Supreme Court appeal, as long as [his] legal boxes arrive when [he does].” [Id. at 9.]
For his relief, Plaintiff seeks a TRO and/or a preliminary injunction. [Doc. 1-3 at 6.] Plaintiff further asserts that, “[a]t this moment, all [he is asking for] is a TRO and/or preliminary injunction, ” but he intends to seek money damages in the future when his claim is amended. [Id.] According to Plaintiff, “less than 20% of this matter has completed the grievance process.” [Id.]
STANDARD OF REVIEW
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, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Amended 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.
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, 94 (2007). However, even under this less stringent standard, Plaintiff's Complaint is 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 petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the 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).
DISCUSSION
As noted, Plaintiff commenced this action by filing a document styled as a complaint seeking injunctive relief. [Doc. 1 at 1.] Although Plaintiff styled his filing as a complaint, he states that he seeks only injunctive relief and does not wish to proceed with his substantive claims at this time. [Id.] On the standard complaint form that Plaintiff was required to complete, he reiterated that he is only seeking injunctive relief in this action and that he has not completed the grievance process for his substantive claims. [Doc. 1-3 at 6.] Additionally, Plaintiff has filed other documents reiterating his intent to pursue only injunctive relief and not litigate his substantive claims at this time. First, Plaintiff filed a letter stating, in part,
Plaintiff did not file a separate motion for TRO.
I need a TRO and/or injunction to prevent further irreparable harm to me, both reference to access to courts and my physical person.
[Doc. 7 at 1 (internal quotation marks omitted).] Second, Plaintiff filed a document construed as a motion to amend or correct the complaint stating, in part,
Though my letter to [the Court] is from start to finish a request for TRO and/or Preliminary Injunction, this Court's Order does not mention this request, but instead regards my letter as a lawsuit.
I understood from previous communication with the court that in order to obtain a TRO or Preliminary Injunction I must first show I am likely to succeed on the merits. I therefore in my letter have simply shown the court what I believe to be enough of the merits. I didn't have enough ink to show more. This complaint will grow to encompass about twenty grievances.
These matters are all still going through the lengthy grievance process, and because of that fact, I have not sought to commence the lawsuit at this time. It will happen, but might fail “now” for lack of exhaustion, so my only known remedy is TRO and/or Preliminary Injunction.
The urgent need for a quick solution also makes TRO or Preliminary Injunction the best option. . . .
[Doc. 8 at 1 (emphasis in original).]
Based on Plaintiff's allegations in his Complaint and explanations in his other filings, the undersigned concludes that Plaintiff seeks only to obtain injunctive relief in this action and does not wish to litigate his substantive claims at this time. However, Plaintiff is not permitted to proceed with his request for injunctive relief without filing a lawsuit concerning his underlying substantive claims. “Federal Rules of Civil Procedure 2 and 3 provide that the only cognizable ‘form of action' is ‘the civil action,' which does not commence until a complaint has been filed. Thus, where a plaintiff seeks relief from the court without filing a complaint, the court generally lacks jurisdiction to provide the requested relief.” Liberty Mut. Grp., Inc. v. Wright, No. DKC 12-0282, 2012 WL 718857, at *3 (D. Md. Mar. 5, 2012) (collecting cases). As such, the Court must dismiss this action because of Plaintiff's failure to file a complaint concerning his substantive claims.
Further, even if the Court were to construe Plaintiff's filings as a properly filed complaint in this matter and separately consider his filings as a motion for TRO, the undersigned concludes that his claims are premature and his motion for TRO fails to satisfy the requisite standard. The Court will address each issue in turn below.
First, Plaintiff's claims are premature and the Court therefore lacks jurisdiction over them. Plaintiff has filed this action pursuant to 42 U.S.C. § 1983 possibly alleging claims of access to the courts and deliberate indifference. However, Plaintiff's Complaint clearly pleads that Plaintiff has not exhausted the grievance process. [Doc. 1-3 at 6.]
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) (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).
As a matter of judicial economy, other deficiencies in the Complaint are unaddressed as facial non-exhaustion is a ground for dismissal here.
Prisoners may file suits about prison conditions only if “administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “A court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies.” Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). Generally, because failure-to-exhaust is an affirmative defense, “a district court, at the pleadings stage, may not dismiss a claim based on the plaintiff's failure to affirmatively show exhaustion.” Foster v. Warden of Tyger River Corr. Inst., No. 9:17-cv-945-TMC, 2018 WL 451720, at *1 (D.S.C. Jan. 17, 2018). “Nevertheless, despite the fact that failure-to-exhaust is an affirmative defense, a prisoner's complaint may be dismissed for non-exhaustion in the rare case where failure to exhaust is apparent from the face of the complaint.” Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017) (internal quotations omitted). Here, Plaintiff has alleged, on the face of his Complaint, that he has not exhausted his remedies. [Docs. 1-3 at 6; 8 at 1.] Thus, Plaintiff's Complaint is subject to summary dismissal.
This requirement applies to all prisoner actions about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002).
Second, Plaintiff is not entitled to injunctive relief at this time. A plaintiff seeking a preliminary injunction must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reinstated in relevant part on remand by 607 F.3d 355 (4th Cir. 2010). Critically, a plaintiff must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 20-23; Real Truth, 575 F.3d at 347. Only then may a court consider whether the balance of equities tips in the plaintiff's favor. See Real Truth, 575 F.3d at 346-47. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Real Truth, 575 F.3d at 347 (quoting Winter, 555 U.S. at 24).
Here, Plaintiff has failed to meet the standard for the issuance of a preliminary injunction because, at this stage of the proceedings, he has not shown that he is likely to succeed on the merits of his claims. The crux of this action appears to be Plaintiff's claim that prison officials are interfering with his access to the courts. However, as stated, Plaintiff has not filed a complaint in this action to litigate his substantive claims. As such, “with no complaint and simply a petition for preliminary relief, the Court cannot discern whether the remedies sought in the request for preliminary injunctive relief bear[] any relationship to the ultimate relief sought.” Noble Energy, Inc. v. Griffith, No. 5:13-cv-101, 2013 WL 12321551, at *2 (N.D. W.Va. Sept. 9, 2013).
Further, Plaintiff's allegations fail to demonstrate that he is likely to succeed on the merits. To state a claim for denial of court access, a plaintiff must allege that he has been prejudiced in pursuing non-frivolous litigation concerning his conviction or prison conditions. Lewis v. Casey, 518 U.S. 343, 350-55 (1996). The right of access to the courts is the “right to bring to court a grievance that the inmate wished to present, ” and violations of that right occur only when an inmate is “hindered [in] his efforts to pursue a legal claim.” Id. A plaintiff must demonstrate that the defendants caused actual injury, such as the late filing of a court document or the dismissal of an otherwise meritorious claim. Lewis, 518 U.S. at 353-54. The actual-injury requirement is not satisfied by just any type of frustrated legal claim, but instead requires that the inmate demonstrate that his “non-frivolous” civil rights legal claim has been “frustrated” or “impeded.” Id. at 353-55. “Actual injury cannot be established merely by conclusory statements that the inmate would have fared better in litigation had he or she had more or better access to legal research materials.” Jones v. Lexington Cty. Det. Ctr., 586 F.Supp.2d 444, 448 (D.S.C. 2008).
Here, Plaintiff has made no allegations of any real injury and/or prejudice that he actually suffered as a result of the alleged inadequate access to legal materials. See Lewis at 350-55 (explaining a plaintiff must allege actual injury resulting from an allegedly inadequate jail library in order to state a claim under § 1983). Plaintiff has not identified any specific claim that he has been unable to litigate because of the alleged denial of access to a law library or access to the courts. Instead, Plaintiff simply alleges that he has been denied access to legal materials and access to the court, but he fails to allege any specific facts as to how any case has been adversely affected due to his denial of access to the court or to legal materials. Although Plaintiff asserts that he anticipates difficulty perfecting his appeal and has had to request an extension of time to file his appeal, he has not alleged that he has missed any deadlines. Thus, Plaintiff's conclusory allegations are insufficient to show an actual injury. Therefore, because Plaintiff has not shown that he is likely to succeed on the merits in this case, he is not entitled to injunctive relief.
The undersigned notes that this is the second action filed by Plaintiff seeking injunctive relief without the filing of a complaint as to Plaintiff's substantive claims. The Court takes judicial notice of Plaintiff's prior action at case No. 8:21-cv-00029-DCC-JDA. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (Courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”). That action was dismissed for the same reasons identified herein. If Plaintiff continues to file similar frivolous actions, the undersigned may recommend that dismissal of such actions be deemed a strike under the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e (“PLRA”). The PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009); 28 U.S.C. § 1915(g). “When a prisoner has previously filed at least three actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, the Act's ‘three strikes' provision requires that the prisoner demonstrate imminent danger of serious physical injury in order to proceed without prepayment of fees.” McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)). The PLRA's “three strikes” rule was enacted to bar prisoners who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. Id. Accordingly, Plaintiff is hereby warned that any future cases filed similar to the present case may be deemed a “strike” for purposes of the PLRA's “three strike rule.” See, e.g., Owl Feather-Gorbey v. Crickard, No. 0:20-cv-01116-JFA-PJG, 2021 WL 1811563, at *2 (D.S.C. May 6, 2021) (noting the court lacked jurisdiction to adjudicate plaintiff's claims for injunctive relief and discussing application of PLRA's three strikes rule).
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action without prejudice and without issuance and service of process.
The undersigned recommends dismissal without prejudice so that Plaintiff may refile a complaint once exhaustion is appropriately completed. The statute of limitations tolls while administrative exhaustion is completed under the PLRA. Battle v. Ledford, 912 F.3d 708, 720 (4th Cir. 2019).
IT IS SO RECOMMENDED.
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
300 East Washington Street, Room 239
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).