Opinion
C. A. 4:22-4523-TMC-TER
02-15-2023
Cornell Wigfall, Sr., #2022081307, a/k/a Cornell Jermaine Wigfall, Plaintiff, v. Brittany Keefner, Shirley Anderson, Clark Ard, Carter Wiever, Neil Johnson, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a federal pretrial detainee, 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).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The 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 frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
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 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 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
In January 2023, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 8). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 11); however, some deficiencies persist and the action is subject to partial summary dismissal as to specific claims.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges his claims are under the First, Eighth, and Fourteenth Amendments. (ECF No. 11 at 5).
Claims
Claims Subject to Summary Dismissal
Plaintiff alleges one of his claims is a RLUIPA claim. (ECF No. 11 at 5). Plaintiff's request for relief is only for money damages. (ECF No. 11 at 9). Monetary damages are not available under RLUIPA as Congress did not authorize such. Brown v. Lumpkin, No. 4:21-cv-0670-TMC-TER, 2022 WL 4181064, at *5 (D.S.C. Apr. 7, 2022), report and recommendation adopted, 2022 WL 3224670 (D.S.C. Aug. 10, 2022)(collecting cases). Plaintiff has failed to state a claim upon which relief can be granted as to RLUIPA.
Plaintiff alleges one of his claims is a claim for denial of access to court. Plaintiff alleges he has had to get numerous continuances at his pre-trial status conferences in part because he is not able to assist his attorney with case law. (ECF No. 11 at 6). Plaintiff alleges attorney visits are hard because his attorney's office is not equipped to hold video visits through the applicable application and his attorney's schedule does not allow the attorney to travel hours to Plaintiff. (ECF No. 11 at 12). Plaintiff is a federal pretrial detainee with a pending criminal case before this court. No. 2:19-cr-1031. Plaintiff is represented currently by attorneys Alexander Tesoriero, Michael Anthony Uricchio, and O Grady Query. No. 2:19-cr-1031. The docket reflects continuances for various reasons: COVID-19 transmission rates, to allow new counsel time to review discovery, for the ends of justice, due to attorney availability, at the request of Plaintiff's attorneys to prepare motions, and for plea negotiations to continue. No. 2:19-cr-1031. An allegation of lack of a law library may not be a constitutional violation if the prisoner is provided with an attorney. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (citing Bounds v. Smith, 430 U.S. 817 (1977)). Plaintiff has three attorneys in his current criminal case and is awaiting trial. Further, Plaintiff is held as a detainee in a local detention center; the Fourth Circuit Court of Appeals has held that local jails, designed for temporary detainment, are generally not required to have a law library. Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987). The Supreme Court held in Lewis that a plaintiff 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. Lewis, 518 U.S. at 352-53. Continuances are not uncommon in the course of a criminal proceeding and Plaintiff waived his speedy trial rights in his criminal case. See No. 2:19-cr-1031. Plaintiff has failed to plead any actual injury. Plaintiff has failed to state a claim upon which relief can be granted as to denial of access to court.
Plaintiff alleges there is mold in the shower. Plaintiff has not alleged any resulting injuries. (ECF No. 11 at 6). Plaintiff has failed to state a claim upon which relief can be granted as to mold. Plaintiff alleges visits one time a week for thirty minutes is unconstitutional (ECF No. 11 at 13). As to Plaintiff's allegations regarding wanting more visitation, there is no constitutional right to visitation. See White v. Keller, 438 F.Supp. 110, 115 (D. Md. 1977), aff'd, 588 F.2d 913 (4th Cir. 1978). Plaintiff alleges he was denied property of books not transferred with him and told to purchase them again (ECF No. 11 at 14). Deprivations of property by state employees are not actionable under § 1983 and do not offend due process when adequate post-deprivation state remedies are available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff has remedies under South Carolina law to obtain relief for the alleged taking of his personal property, by proceeding pursuant to the South Carolina Tort Claims Act, SC Code Ann. § 15-78-10 et seq. See Mora v. City of Gaithersburg, 519 F.3d 216, 231 (4th Cir.2008) (State courts are available for property claims and the State process is constitutionally adequate). Thus, Plaintiff fails to state a claim for violation of his constitutional rights based on the alleged deprivation of his property. All the claims discussed in this paragraph are subject to summary dismissal as Plaintiff has failed to state a claim upon which relief could be granted as to these particular claims.
Claims Authorized for Service
Plaintiff alleges he has no clean drinking water and this has caused his stomach to be upset numerous times. (ECF No. 11 at 6). Plaintiff alleges paint chips fall into his food from the flap and make his stomach sick. (ECF No. 11 at 6). Plaintiff alleges there are no religious services available to him at this facility. (ECF No. 11 at 7). Plaintiff alleges he is locked down in isolation 20-24 hours a day. (ECF No. 11 at 8). Plaintiff alleges he has not received any medical attention or treatment for stomach pain or for carpal tunnel causing loss of sensation in both hands. (ECF No. 11 at 8). Plaintiff alleges he has inadequate access to exercise which has resulted in a diagnosis of fatty liver. (ECF No. 11 at 9). At this procedural stage, Plaintiff's allegations as to claims in this paragraph surpass summary dismissal and this same day service and issuance of summons on defendants as to only these claims has been authorized by separate order.
Defendants
At this stage in the proceedings, Plaintiff appears to be presenting allegations in support of supervisory liability, by alleging as to each type of individual claim that all defendants are aware of the specific facts as to Plaintiff's claims (ECF No. 11 at 6-7) and after being made aware, Plaintiff is “still” experiencing the alleged facts of each individual claim (ECF No. 11 at 8-9). Plaintiff alleges he grieved to the defendants and responses were along the lines of Plaintiff will have to live with the situation and that there were orders not to change anything that was already in place. (ECF No. 11 at 10-11). Plaintiff's allegations appear to attempt to follow the elements of the exception to supervisory liability, that defendants had knowledge of conduct that risked constitutional injury, that defendants' response to that knowledge was so inadequate to show deliberate indifference or tacit authorization, and the inaction caused the particular constitutional injury. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Under “notice pleading” standards, Plaintiff has made allegations sufficient to surpass summary dismissal of defendants at this stage of the proceedings. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-556 (2007); Fed. R. Civ. Proc. R. 8 (a)(2), (e).
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Plaintiff has failed to state a claim upon which relief can be granted as to claims regarding denial of access to court, mold, visitation, property deprivation, and RLUIPA(but not First Amendment religion claims), and that these claims be dismissed with prejudice.The remaining claims, regarding medical, food/water conditions of confinement, religious services, and cell isolation lack of exercise, proceed against all Defendants. In a separately docketed order, the court has authorized the issuance and service of process on all Defendants.
As noted above, Plaintiff has been given an opportunity to amend and has filed an amended complaint. It is recommended that these specific claims be dismissed with prejudice and without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
Plaintiff is advised that he 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 of Court
United States District Court
Post Office Box 2317
Florence, 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).