Opinion
C/A No. 5:20-00052-RMG-KDW
09-29-2020
Vincent Brown, Plaintiff, v. Associate Warden Ramos; Lieutenant Parker; Sergeant Daniels; Sergeant Smith; Cpl. Tate; H. Taylor White; Sergeant Cunningham; C/O McClay; Millhouse; Sally Elliott; Ms. Shadaya Jackson; Sgt Tyreese Coaxum; Frederick Freeman, Jr.; C/O Lykes Defendants
Report and Recommendation
Plaintiff, an inmate with the South Carolina Department of Corrections ("SCDC"), filed this 42 U.S.C. § 1983 action alleging Defendants violated his constitutional rights. ECF No. 1. This matter is before the court on the following dispositive motions: Defendant Taylor White filed a Motion to Dismiss, ECF No. 66, on May 6, 2020; Defendant Cpl. Tate filed a Motion to Dismiss on June 23, 2020, ECF No. 96; Defendants Sally Elliot, Shadaya Jackson, Millhouse, Lieutenant Parker, and Associate Warden Ramos filed a Motion for Judgment on the Pleadings on July 8, 2020, ECF No. 101; and Defendants Ramos, Parker, Daniels, Cunningham, McClay, Millhouse, Elliott, Coaxum, Freeman, Jackson, and Lykes filed a Motion for Summary Judgment on July 8, 2020, ECF No. 102. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' Motions, ECF Nos. 76, 98, 106, and Plaintiff responded to the motions. See ECF Nos. 81, 108, 123. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because these motions are dispositive, a Report and Recommendation is entered for the court's review.
Plaintiff also named Sergeant Smith in his Complaint. However, this Defendant was never located or properly served. See ECF No. 31.
I. Background
Plaintiff, pro se, is a state inmate currently incarcerated at Broad River Correctional Institution ("BRCI"). ECF No. 1 at 2. Plaintiff alleges claims for cruel and unusual punishment; excessive use of force; denial of medical and dental care; and due process violations. Id. at 9. In a narrative, Plaintiff describes an incident from October 8, 2019, when he claims to have had an anxiety attack and asked officers for help from mental health care staff. Id. at 10-13. During the incident, Plaintiff claims his requests for help were ignored, and in response, he began to cut himself and eat feces. Id. at 10. Further, he represents he told correctional officers that he was having suicidal and homicidal thoughts. Id. at 11. In response, Plaintiff alleges a force-cell team returned to his cell where he was cutting himself with a razor. Id. Plaintiff alleges that he was then assaulted by officers and hit in the back of the head with a mop stick. Id. After the incident, Plaintiff alleges that all articles, including his mattress were removed from his cell, and he was "escorted up front to the same holding cell to wait and speak to mental health on the telesite computer." Id. at 12. Plaintiff represents that he eventually spoke to someone from mental health, explained what happened, and was placed in crisis intervention. Id. at 12-13.
In a section entitled "Statement of claim," Plaintiff recites in paragraph form the other causes of action he is alleging. Id. at 15-16. Those claims include: failure to protect; medical indifference; denial of access to courts, recreation, and exercise; failure to correct correctional officer actions; failure to provide medical attention; failure to provide adequate cell cleanings; failure to complete required incident reports; failure to discipline certain defendants; and failure to provide Plaintiff with help from law clerks or law books. Id. Plaintiff seeks $750,000 in actual damages, $50,000 in punitive damages, a preliminary injunction, a jury trial, and any other additional relief this court deems just and proper. Id. at 17.
II. Standard of Review
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing ... that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a Complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion]." Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001). If matters outside the pleadings, such as affidavits, are considered by the court in connection with a Rule 12(b)(6) motion, then the motion to dismiss converts to a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Wilson-Cook Med., Inc. v. Wilson, 942 F.2d. 247, 251 (4th Cir. 1991).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
III. Analysis
A. Defendants Ramos, Parker, Daniels, Cunningham, McClay, Millhouse, Elliot, Coaxum, Freeman, Jackson, and Lykes' Motion for Summary Judgment
Several dispositive motions are currently pending. The most recently filed motion, the Motion for Summary Judgment, ECF No. 102, will be addressed first. Defendants argue that Plaintiff has failed to exhaust his administrative remedies. ECF No. 102 at 4-10.
In the pending Motion for Summary Judgment, Defendants contend that Plaintiff's Complaint should be dismissed because Plaintiff has not exhausted his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). See id. Specifically, Defendants argue that "Plaintiff did not receive a final agency decision concerning any of the issues prior to filing this lawsuit on January 6, 2020." Id. at 5. Further, Defendants maintain that Plaintiff filed seven Step-One Grievances during his tenure at BRCI, and all were "Processed & Returned" to Plaintiff for the reasons stated in the grievances. Id. Based on Plaintiff's failure to complete the grievance process, Defendants argue that Plaintiff's lawsuit should be dismissed. Id. at 5-6.
Section 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies "need not meet federal standards, nor must they be 'plain, speedy, and effective.'" Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739). Further, prisoners, which Plaintiff was at all times relevant to these claims, are required to exhaust administrative remedies. See 42 U.S.C.A. 1997e(h) (defining "prisoner" for PLRA purposes as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.").
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency "an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court[.]" Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, "[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court." Id. Any consideration of administrative remedies pursued after the commencement of the litigation would only serve to frustrate both purposes of the PLRA's exhaustion requirement. Satisfaction of the exhaustion requirement requires "using all steps that the agency holds out, and doing so properly." Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). Thus, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005).
In support of their position, Defendants attached the affidavit of Sherman Anderson, General Counsel and Chief of the Inmate Grievance Branch of SCDC. ECF No. 102-2. Mr. Anderson attests that pursuant to the SCDC grievance procedure as set out in SCDC Policy GA-01.12, there is a three-step procedure with which inmates must comply. See id. at ¶¶4-6. First, an inmate is required to resolve an issue informally by submitting a Request to Staff Member ("RTSM"). Id. at ¶ 6. After receiving a response to the RTSM, the inmate may then complete a Step-One grievance or a Form 10-5. Id. at ¶ 8. Specifically, the Step-One grievance must "contain a brief statement of the circumstances of the grievance" and include the Request to Staff Member paperwork or reference number. Id. Once the Step-One grievance is processed and returned, the inmate has the opportunity to cure any defects or appeal the Step-One form. Id. at ¶¶ 9-14. Specifically, the inmate must complete the Step-Two grievance form within five (5) days of receipt of the response to the Step One grievance. Id. at ¶ 14. According to Mr. Anderson, Plaintiff filed seven (7) grievances while housed at BRCI, but he did not complete the grievance procedure for any of them. Id. at ¶¶ 17-18. Further, Mr. Anderson attests:
In Grievance Number BRCI-0933-19, dated October 10, 2019, Plaintiff raises the issue of an alleged excessive use of force that occurred on October 8, 2019. This grievance was Processed & Returned because Plaintiff did not complete an appropriate informal resolution. Plaintiff was instructed to "forward a Request to Staff Member to Security supervisor/staff for review/action." Plaintiff was further told that in order to proceed he must have an answered RTSM or kiosk reference number attached to the grievance.Id. at ¶ 21. Mr. Anderson explains that Plaintiff filed Grievance Number BRCI-1072-19 on December 5, 2019, repeating the issues stated in Grievance Number BRCI-0933-19. Id. at ¶ 22. Therefore, according to Mr. Anderson, Grievance Number BRCI-1072-19 was Processed and Returned as a duplicate. Id. at ¶ 23. Under the relevant procedure, Plaintiff should have appealed the reason given for processing and returning his Step-One grievance to the Branch Chief, but Plaintiff never took any further action concerning any of the other Step-One grievances returned to him. Id. at ¶¶ 24-25. Mr. Anderson attests that Plaintiff never received a final agency decision concerning any of the issues raised in the grievances, and by extension, any of the issues raised in the lawsuits. Id. at ¶ 26.
In his Response to Defendants' Motion, Plaintiff maintains that all administrative remedies available to him were exhausted, and grievance number BRCI-0933.19 was submitted by Plaintiff as an "emergency" grievance but was processed in the "normal course." ECF No. 123 at 2-3. Further, Plaintiff maintains he sent a RTSM to Defendant Sally Elliot because he was confused. Id. at 3. However, Plaintiff does not address why he did not file or attempt to file a Step-Two grievance concerning any of the issues raised in his Complaint.
Based on the Exhibits filed by the parties and based on Plaintiff's own admissions, it is clear to the undersigned that Plaintiff failed to exhaust his administrative remedies prior to filing his Complaint. Plaintiff did not file or attempt to file an appeal from his initial grievance or attempt to cure any issues regarding it. Accordingly, he has failed to exhaust his administrative remedies. See Wagner v. United States, 486 F. Supp. 2d 549, 558 (D.S.C. 2007) Therefore, the undersigned recommends that Defendants' Motion for Summary Judgment be granted because Plaintiff failed to exhaust his available administrative remedies before filing this action. See Pozo, 286 F.3d at 1024 (holding that an inmate's failure to "properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983."); see also Blevins v. Loranth, No. 09-788-TLW-BM, 2010 WL 670099, at *3 (D.S.C. Feb. 22, 2010), ("Plaintiff needed to file and exhaust his administrative claim [] at FCI Williamsburg prior to proceeding with this lawsuit."); Kirk v. Kirkland, No. 0:06-1036 MBS-BM, 2006 WL 3759801 at *2 (D.S.C. Dec. 18, 2006) (finding that "before Plaintiff may proceed with his claim in this Court, he must first have exhausted any administrative remedies that were available at the Detention Center.") (both citing Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 34-35 (1st Cir. 2002)).
B. Defendants Ramos, Elliot, Parker, Millhouse, and Jackson's Motion for Judgment on the Pleadings
In their Motion, these Defendants argue that Plaintiff's supervisory liability claims against them should be dismissed under Rule 12(c) of the Federal Rules of Civil Procedure. ECF No. 101. They maintain that a Rule 12(c) Motion tests the sufficiency of the Complaint and is evaluated under the same standard that applies to a Rule 12(b)(6) motion. Id. at 3. Under this standard, Defendants argue that all claims against these Defendants should be dismissed for failure to state a claim. Id. at 1-3. The undersigned will address the sufficiency of the claims below in turn.
1. Claims against Defendants Ramos and Elliot
These Defendants maintain that Plaintiff attempts to assert causes of action against Defendants Ramos and Elliot for their alleged tacit authorization of use of excessive force on October 8, 2019, by failing to take corrective action after the incident. Id. at 2. They argue that Plaintiff attempts to assert supervisory liability claims against these Defendants when there is no allegation that either Defendant Ramos or Defendant Elliot participated personally in the alleged incident. Id. at 2-3. Therefore, they maintain that Plaintiff's claims pertaining to Defendants Ramos and Elliot for supervisory liability that arise out of the excessive force incident should be dismissed. The undersigned agrees.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Plaintiff must only plead "a short and plain statement of the claim showing that the pleader is entitled to relief." Bell Atl. Corp., 550 U.S. at 555 (internal citations omitted). In order for Plaintiff's Complaint to survive this Motion to Dismiss, Plaintiff does not need to plead detailed factual allegations in his Complaint. See id. However, the United States Supreme Court has held that a plaintiff's grounds for relief require more than just stating legal conclusions and elements of a cause of action. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that, on a motion to dismiss, a court is "not bound to accept as true a legal conclusion couched as a factual allegation."). Plaintiff's complaint must contain sufficient factual allegations that make a claim for relief plausible, not just possible. See Ashcroft, 556 U.S. at 678; Bell Atl. Corp., 550 U.S. at 570. This court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in his favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011).
The Bell Atl. Corp. Court noted that defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies." 550 U.S. at 565 n.10. However, Bell Atl. Corp did not expressly hold that a Plaintiff must assert specific time, place, and persons involved in order to comply with Rule 8. See Ashcroft, 556 U.S. at 678 (internal Bell Atl. Corp citation omitted) ("As the Court held in Bell Atl. Corp, [ ] the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."); Starr v. Sony BMG Music Entm't, 592 F.3d 314, 325 (2d Cir. 2010) (finding the Bell Atl. Corp court noted, in dicta, that the pleadings there mentioned no specific time, place, or person involved in the alleged conspiracies and rejected defendants' argument that Bell Atl. Corp requires a plaintiff identify the specific time, place, or person related to each conspiracy allegation); Milliken & Co. v. CNA Holdings, Inc., 3:08-CV-578-RV, 2011 WL 3444013, at *5 (W.D.N.C. Aug. 8, 2011) (finding other courts have held a plaintiff can survive a motion to dismiss even though he fails to answer who, what, when and where).
The Fourth Circuit has stated: "A supervisor can only be held liable for the failings of a subordinate under certain narrow circumstances." Green v. Beck, 539 F. App'x 78, 80 (4th Cir. 2013). In particular, to state a claim for supervisory liability under § 1983, a plaintiff must allege: "(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; (2) that the supervisor's response to the 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." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted); see also Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014). In other words, the liability of supervisory officials "is not based on ordinary principles of respondeat superior, but rather is premised on 'a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care." Baynard v. Malone, 268 F.3d 228, 234 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)).
Plaintiff does not meet Rule 8 pleading requirement to survive a Motion to Dismiss concerning a purported § 1983 supervisory claim against Defendants Ramos and Elliot. First, Plaintiff acknowledges that all purported violations against him occurred outside these Defendants' presence. Moreover, Plaintiff does not state facts that satisfy any of the Shaw factors outlined above. The facts Plaintiff alleges do not indicate these Defendants had personal involvement in the alleged incident that occurred. Therefore, Plaintiff has failed to meet Rule 8 pleading requirements concerning a claim for supervisory liability under § 1983 against Defendants Ramos and Elliot. Accordingly, the undersigned recommends granting these Defendants' motion and dismissing this purported cause of action against them.
2. Specific claims against Defendant Ramos
In a separate section of their brief, these Defendants maintain that purported claims against Defendant Ramos relating to his alleged involvement in tacitly authorizing lower ranking officials to deny Plaintiff access to courts, medical services, and outside recreation should be dismissed. ECF No. 101 at 7-9. They argue that Plaintiff's allegations do not create a plausible claim that Defendant Ramos had actual or constructive knowledge of a pervasive and unreasonable risk to Plaintiff or that Plaintiff actually suffered a deprivation of any kind. Id. The undersigned agrees.
Under the legal standard as outlined above, Plaintiff does not meet Rule 8 pleading requirement to survive a Motion to Dismiss concerning a purported § 1983 supervisory claim against Defendants Ramos relating to his claims concerning denial of access to courts, medical services, and outside recreation. First, Plaintiff does not allege that Defendant Ramos had any personal involvement in the purported violations against him. Moreover, Plaintiff does not state facts that satisfy any of the Shaw factors outlined above related to these claims. Therefore, the undersigned finds Plaintiff's purported supervisory claims against Defendant Ramos concerning his causes of action for denial access to courts, medical services, and outside recreation fail to meet Rule 8 pleading requirements. Accordingly, the undersigned recommends granting these Defendants' Motion and dismissing all of Plaintiff's purported supervisory claims against Defendant Ramos.
3. Claims against Defendants Parker and Millhouse
These Defendants argue that Plaintiff's claims against Defendants Parker and Millhouse for denial of access to courts should be dismissed for failure to state a claim. ECF No. 101 at 9. The undersigned agrees. In his Complaint, Plaintiff maintains he was denied access to courts in a vague sense and specifically maintains that Defendant Millhouse failed to provide Plaintiff with adequate help from law books or law clerks. ECF No. 1 at 16. Such allegations do not meet Rule 8 pleading requirements for a plausible cause of action for denial of access to courts. See e.g., Lewis v. Casey, 518 U.S. 343, 350-53 (1996) (holding 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"); Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (finding in order to make out a prima facie case of denial of access to the courts, the inmate cannot rely on conclusory allegations; he must demonstrate with specificity an actual injury resulting from official conduct). Therefore, the undersigned recommends granting these Defendants' Motion and dismissing Plaintiff's purported claim for denial of access to courts.
4. Claims against Defendants Jackson and Ramos
In their final argument to the court, these Defendants argue that Plaintiff's claims against Defendants Jackson and Ramos for failing to conduct a classification review does not state a claim upon which relief can be granted. ECF No. 101 at 9. Specifically, they maintain that in his Complaint, Plaintiff alleges that Defendant Jackson failed to conduct a 90-day disciplinary review which Plaintiff maintains amounts to cruel and unusual punishment. Id. at 10. However, because there is no constitutional right for a state prisoner to be housed at a particular custody level, these Defendants argue this claim is unavailing. Id. at 11. The undersigned agrees.
Plaintiff does not have a constitutional claim relating to his classification for custody purposes. The South Carolina Code of Laws vests exclusive authority relating to the care and housing of prisoners in the Director of SCDC and places no limitations on official discretion. See S.C. Code Ann. §§ 24-1-130, 24-1-140, 24-3-20, 24-3-30. Federal courts are required to accord great consideration to a correctional system's need to maintain order, discipline, and control, see Wolff v. McDonnell, 418 U.S. 539, 558-62 (1974), and it is well established that there is no constitutional right for a state prisoner or federal prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. Olim v. Wakinekona, 461 U.S. 238 (1983); Ange v. Paderick, 521 F.2d 1066 (4th Cir. 1975); Lyons v. Clark, 694 F. Supp. 184, 187 (E.D. Va. 1988) (collecting cases). In other words, the placement and assignment of inmates into particular institutions or units by state or federal corrections departments are discretionary functions, and, generally, are not subject to review unless state or federal law places limitations on official discretion. Hayes v. Thompson, 726 F.2d 1015, 1016-17 (4th Cir. 1984) (collecting cases). Additionally, the undersigned finds that Plaintiff has failed to plead with particularity a plausible cause of action against either Defendant Jackson or Ramos based on the facts as alleged in his pleadings. Therefore, the undersigned recommends granting these Defendants Motion to Dismiss Plaintiff's purported claims related to his classification.
C. Defendant H. Taylor White's Motion to Dismiss
In her Motion to Dismiss, Defendant White argues that the action against her should be dismissed for failure to state a claim under Rule 12(b)(6). ECF No. 66. She maintains that Plaintiff complains that she allegedly denied his request for unspecified medical and dental services such that his Complaint fails to plausibly allege a claim. Id. The undersigned agrees. The allegations in Plaintiff's Complaint related to an alleged deprivation of medical care are vague and lack the particularity required under Rule 8 minimum pleading requirements. Therefore, the undersigned recommends granting Defendant H. Taylor White's Motion to Dismiss, ECF No. 66, and dismissing any purported medical indifference claims.
D. Defendant Cpl. Tate's Motion to Dismiss
In his Motion, Defendant Cpl. Tate moves to dismiss this matter based on lack of personal jurisdiction and insufficiency of service of process under Rules 12(b)(2) and (5). ECF No. 96. He maintains that he was never properly served, or, in the alternative, argues that the action against him should be dismissed under Rule 12(b)(2) for insufficient personal jurisdiction. Id. at 4. In addition to arguments raised in the Motion to Dismiss, the undersigned has reviewed the docket, including Plaintiff's responses to the dispositive motions, and further recommends that Plaintiff's Complaint pertaining to Defendant Cpl. Tate be dismissed for failure to prosecute.
Rule 4(e) governs service on an individual. Pursuant to Rule 4(e)(1), service is effected on an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Alternatively, Rule 4(e)(2) indicates that service is effected on an individual by:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
As Defendant Tate argued in his Motion to Dismiss, Plaintiff's initial summons to Defendant Cpl. Tate was returned unexecuted, and the returned summons indicated that the SCDC Office of General Counsel "can not accept-could not find this defendant." ECF No. 27. Plaintiff then amended his Summons that was issued to the BRCI in Columbia, SC. See ECF No. 48. After an inquiry by the court, counsel for certain Defendants indicated that Defendant Cpl Tate could not be identified. ECF No. 62. After the Amended Summons was delivered to BRCI, the return again indicated that the SCDC Office of General Counsel could not accept and "can not identify this defendant." ECF No. 94. Therefore, there is no indication to the court that Defendant Cpl. Tate was ever properly served in this case or became a proper party to this action. Accordingly, the undersigned recommends dismissing Defendant Cpl. Tate from this action pursuant to Rule 4(m) or 12(b)(5) of the Federal Rules of Civil Procedure.
In addition, the undersigned notes that Plaintiff has failed to respond to the merits of Defendant Tate's argument after an order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the importance of such motions and of the need for him to file an adequate response. ECF No. 106. Plaintiff was specifically advised that if he failed to respond adequately, Defendant's Motion may be granted, thereby ending his case. Notwithstanding the specific warning and instructions set forth in the court's Roseboro order, Plaintiff failed to respond to Defendant Tate's argument to the court regarding improper service. As such, it appears to the court that he does not oppose Defendant Tate's Motion and wishes to abandon this action against him. Based on the foregoing, the undersigned recommends Plaintiff's action against Cpl. Tate be dismissed with prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b); Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed. R. Civ. P. 41(b) must balance the policy of deciding cases on their merits against "sound judicial administration." In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed. R. Civ. P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same). Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice against Defendant Cpl. Tate for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 102, be granted and that this case be dismissed. Additionally, the undersigned recommends granting the pending Motions to Dismiss, ECF Nos. 66, 96, and 101, as discussed above and dismissing the action in its entirety.
IT IS SO RECOMMENDED. September 29, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge