Opinion
C/A No. 9:18-3028-RBH-BM
03-19-2019
Willie Johnson, Plaintiff, v. Bryan P. Stirling, West Price, Sgt. A. Hudson, Sgt. Story, Sgt. Wright, Defendants.
REPORT AND RECOMMENDATION
The Plaintiff, Willie Johnson, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. At the time Plaintiff filed this action he was an inmate at the Kirkland Correctional Institution (KCI), part of the South Carolina Department of Corrections (SCDC). It appears, however, that he is currently incarcerated at the Broad River Correctional Institution (BRCI) of the SCDC.
Plaintiff lists a BRCI address on his latest pleadings. See ECF Nos. 14, 16. However, despite being ordered to keep the Clerk of Court advised in writing if his address changed for any reason, and being warned that his case may be dismissed for failure to do so (see ECF No. 9), Plaintiff has not submitted a written change of address notification.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). 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), and a federal district court is charged with liberally construing a pro se complaint to allow for the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980).
However, even when considered pursuant to this liberal standard, for the reasons set forth hereinbelow this case is subject to summary dismissal. 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); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].
Discussion
In an order entered February 11, 2019, Plaintiff was given notice of pleading deficiencies and he was given an opportunity to amend his complaint. ECF No. 9. Plaintiff then filed an Amended Complaint in which he generally reiterates his same claims, adds claims concerning incidents that occurred after the filing of this lawsuit, and further adds various other vague complaints which are discussed below.
First, Plaintiff requests that the Court "enforce" the ruling of the Supreme Court of the United States in Frew v. Hawkins, 540 U.S. 431, 440 (2004). Based on this, he appears to be seeking reinstatement of the so-called Nelson consent decree, which concerned prison conditions at SCDC and was entered in Plyler v. Leeke, No. 82-876, 1986 WL 84459 (D.S.C. Mar. 26, 1986), aff'd in part and dismissed in part, Plyler v. Leeke, 804 F.2d 1251(4th Cir. Nov. 12, 1986) [Table]. The original representative for the class in Civil Action No. 82-876 was Gary Wayne Nelson, but Harry Plyler became the class representative upon Nelson's release from the SCDC. See Plyler v. Evatt, 846 F.2d 208 (4th Cir. 1988). However, the Nelson consent decree was terminated on June 4, 1996, pursuant to the defendants' motion under the PLRA, and the termination of the consent decree was thereafter affirmed on November 14, 1996, by the United States Court of Appeals for the Fourth Circuit in Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996). This court lacks the authority or jurisdiction to enforce a prison consent decree that has previously been terminated. See Hines v. Anderson, No. 03-2010, 2003 WL 22952185, *1 (8th Cir. 2003) [court recognized that once motion to terminate consent decree was granted, inmates lost right to enforce the terms of consent decree]; Ward v. Ozmint, No. 09-1594. 2010 WL 4638622 (D.S.C. Oct. 10, 2018), adopted by 2010 WL 4637991(D.S.C. Nov. 8, 2010).
Further, contrary to Plaintiff's argument, the decision in Frew does not dictate that this Court must reinstate or enforce the Nelson consent decree. In Frew the Supreme Court found that the Eleventh Amendment did not bar the enforcement of a state's obligations under a valid consent decree that had been entered into in federal court. See Frew, 540 U.S. at 438; Hawkins v. Commissioner, NH Dept. of Health and Human Servs., No. 99-cv-143-JD, 2007 WL 1456214 (D.N.H. May 16, 2007)[noting that the Court in Frew was "presented with the issue of whether the Eleventh Amendment precludes enforcement of a consent decree by a federal court against state officials" and that the "decision did not reach the standard of review applicable to enforcement actions."]. Here, there is not a current, valid consent decree to enforce. See, e.g., Porter v. Graves, No 77-3045, 2015 WL 6807826 (D.Kan. Nov. 5, 2015)[denying motions to intervene in a closed case for purposes of ordering or enforcing consent decrees which were issued more than nineteen years previously].
Further, the doctrine of res judicata precludes this Court from reopening or reinstating the Nelson consent decree. Res judicata bars litigation of all claims or defenses that were available to the parties in the previous litigation, regardless of whether they were asserted or determined in the prior proceeding. See Brown v. Felsen, 442 U.S. 127, 131 (1979)["Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes."]; Meekins v. United Transp. Union, 946F.2d 1054, 1057 (4th Cir.1991)["The preclusive affect of a prior judgment extends beyond claims or defenses actually presented in previous litigation, for '[n]ot only does res judicata bar claims that were raised and fully litigated, it prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.'"].
Plaintiff also alleges claims in his Amended Complaint about prison conditions at SCDC institutions other than the facilities at which he was housed (for example, Plaintiff complains extensively about alleged incidents, including a riot, at the Lee Correctional Institution) and claims pertaining to other inmates. However, such claims must be dismissed, as Plaintiff may not assert claims on behalf of other inmates. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968)[a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant]; Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981)[a prisoner cannot act as a "knight-errant" for others]. Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)[a pro se prisoner cannot be an advocate for others in a class action].
SCDC records indicate that since November 2016, Plaintiff has only been housed at KCI and BRCI (except for brief periods where he was transported outside SCDC for various reasons, such as medical care, court proceedings, and parole proceedings). See http://public.doc.state.sc.us/scdc-public/ [Search Inmate "Willie Johnson"]. This Court "may properly take judicial notice of matters of public record." See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ["We note that '[t]he most frequent use of judicial notice is in noticing the content of court records.'"].
Plaintiff also alleges that Defendant Bryan P. Stirling, the Director of the SCDC, has violated his civil rights and SCDC procedures by accepting him as a inmate without having the proper commitment papers. This is a challenge to the fact or duration of Plaintiff's confinement, which may not be brought in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 481(1994)[stating that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983"]; Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973)[attacking the length of duration of confinement is within the core of habeas corpus]. Additionally, to the extent that Plaintiff is seeking monetary damages that implicitly question the validity of his conviction, such a claim is also barred by Heck, as Plaintiff has not alleged that his conviction has been previously invalidated. Heck, 512 U.S. at 486-487. Moreover, any violation of a policy of the SCDC does not constitute a violation of Plaintiff s constitutional rights, and is therefore not assertable in a § 1983 action. See Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992); cf. Johnson v. S.C. Dep't of Corrs., No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007)[The plaintiff's allegation that defendants did not "follow their own policies or procedures, standing alone, does not amount to a constitutional violation."](citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)[if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue]).
Further, the undersigned is constrained to note that Plaintiff previously unsuccessfully tried to raise an issue relating to his commitment papers in a prior lawsuit. As this Court previously noted in Johnson v. Ozmint, 567 F.Supp.2d 806 (D.S.C. 2008):
[T]he court concludes Plaintiff's claim cannot proceed because there is simply no evidence, other than Plaintiff's say-so, that he is being improperly detained. The record contains a copy of Plaintiff's commitment order, which indicates Plaintiff was "committed to jail 10-03-84," and it states that Plaintiff is "confined under the jurisdiction and control of the South Carolina Department of Corrections for a period of his life." The order is dated April 18, 1985, and although it does not contain the handwritten signature of the judge, it is signed as "s/ T.L. Hughston, Jr." Plaintiff has not pointed to, and the court has not found, any authority to suggest the commitment order is invalid.Id. at 813 (internal citations omitted).
In his Amended Complaint, Plaintiff also asserts that Defendant Sterling conspired with state judicial personnel to commit a civil rights conspiracy. To establish a civil conspiracy under § 1983, a Plaintiff must have evidence that the Defendants acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in the deprivation of a constitutional right. Glassman v. Arlington Cnty., 628 F.3d 140 (2010)(citing Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir. 1996)). Each member of the alleged conspiracy must have shared the same conspiratorial objective. Hinkle, 81 F.3d at 421. As such, the factual allegations of the Complaint must reasonably lead to the inference that the Defendants came to a mutual understanding to try to "accomplish a common and unlawful plan". Plaintiff's allegations must amount to more than "rank speculation and conjecture," especially when the actions are capable of innocent interpretation. Id. at 421-422. Here, Plaintiff offers only conclusory allegations of an agreement or meeting of the minds between Stirling and persons who are not named as Defendants to this action, such that these claims are subject to summary dismissal. See generally Ashcroft v. Iqbal, 556 U.S. at 677-679; Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; see also Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003)[conclusory allegations of conspiracy between private attorney and state officer insufficient to support § 1983 claim]. Similarly, Plaintiff's conclusory allegations under 42 U.S.C. §§ 1985 and 1986 are also subject to summary dismissal. See Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995) [The Fourth Circuit has "specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts."]. To the extent that Plaintiff is now attempting to assert a claim that Stirling and the newly named Defendants conspired to retaliate against him, he also only asserts inadequate conclusory allegations.
Viability of a § 1986 claim is based on the antecedent § 1985 claim. If the § 1985 claim is dismissed, the § 1986 claim also fails. Buschi v. Kirven 775 F.2d 1240, 1243 (4th Cir. 1985); Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).
As relief, Plaintiff requests monetary damages for emotional distress and mental anguish. However, there is no federal constitutional right to be free from emotional distress, psychological stress, or mental anguish; hence, there is no liability for compensatory or punitive damages under § 1983 regarding such claims. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985); Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989). The PLRA provides that physical injuries are a prerequisite for an award of damages for emotional distress under § 1983. 42 U.S.C. § 1997e(e)["No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury"].
Plaintiff also attempts to assert claims relating to incidents that occurred after the filing of this action, including that the Defendant Hudson allegedly shredded or directed an inmate to destroy Plaintiff's legal documents, that Stirling allowed Defendant West Price (who allegedly is an EMT technician) to serve as a nurse in violation of SCDC policy, that Defendant Price allegedly cancelled a bone marrow transplant that allegedly was ordered by a nurse, certain retaliatory actions against Plaintiff for filing this action, and that Price allegedly conspired with Defendant Lt. Story and Defendant Sgt. Wright to falsify Plaintiff's medical records. However, in the "Exhaustion of Administrative Remedies Administrative Procedures" portion of the Amended Complaint, Plaintiff concedes that he has only submitted grievances concerning having only two meals on weekends and the Frew ruling. Attached to Plaintiff's original complaint are copies of a grievance filed in 2011 concerning the serving of two meals a days on weekends (Plaintiff also mentions the ruling in Frew in he grievance). ECF No. 16-1. Therefore, it is clear from the face of the Amended Complaint that Plaintiff has not exhausted his administrative remedies as to any of these newly raised issues (and as to his previously asserted claims, has only possibly exhausted his remedies as to his claims concerning the serving of two meals a day on the weekend and his attempt to apply Frew to his case).
Before a prisoner can proceed with a lawsuit in federal court, he must first exhaust his administrative remedies as required by the PLRA, which 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." 42 U.S.C. § 1997e(a). 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). Moreover, exhaustion is required even when a prisoner seeks remedies, such as money damages, that are not available in the administrative proceedings. See Booth v. Churner, 532 U.S. 731, 740-41 (2001). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review, which means "'using all steps that the agency holds out, and doing so properly.'" Woodford v. Ngo, 548U.S. 81 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Thus, "it is the prison's requirements, and not the [Prison Litigation Reform Act], that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007).
While a plaintiff's failure to exhaust administrative remedies is considered an affirmative defense, and not a jurisdictional infirmity; Jones v. Bock, 549 U.S. at 216; if the lack of exhaustion is apparent on the face of the prisoner's complaint, sua sponte dismissal prior to service of the complaint is appropriate. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). The Fourth Circuit recently stated that exceptions to the rule (that an inmate need not demonstrate exhaustion of administrative remedies in his complaint and that failure-to-exhaust is an affirmative defense that the defendant must raise) which allow a court to sua sponte dismiss a complaint for failure to exhaust administrative remedies are rare. Custis v. Davis, 851 F.3d 358, 361-362 (4th Cir. 2017). Here, however, while Plaintiff alleges that he exhausted his administrative remedies as to the number of meals he is served on the weekends (and also possibly with respect to his Frew claim), he himself has not alleged that he filed a grievance as to the other matters alleged.
As Plaintiff has not asserted that he exhausted his administrative remedies as to these other matters prior to filing this action, and as some of the incidents allegedly occurred after the filing of this action, he cannot amend his complaint to address this defect. However, if Plaintiff later exhausts his administrative remedies with respect to these claims, he can address this defect, if he can, in the filing of a new action. See, e.g., Brockington v. South Carolina Dep't of Soc. Servs., No. 17-1028, 2017 WL 1531633 (4th Cir. 2017)[Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May 25, 2017)[same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017)[same].
Even with respect to Plaintiff's assertion that he exhausted his administrative remedies as to his complaint that he was served only two meals a day on weekends, he fails to state a claim because he has not alleged that he suffered any serious or significant injury as a result. To state a claim that conditions of confinement violate constitutional requirements, "a plaintiff must show 'both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.'" Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)). Moreover, a plaintiff asserting unconstitutional conditions of confinement must demonstrate that he suffered a serious or significant physical or mental injury as a result of the challenged condition. See Strickler, 989 F.2d at 1380-81. Courts considering similar claims have found that such allegations as are present here are not sufficiently serious as to constitute violations of the Eighth Amendment. See, e.g., Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir.1998)[finding it "doubtful" that prisoner missing fifty meals in five months "was denied anything close to a minimal measure of life's necessities," and commenting that "[m]issing a mere one out of every nine meals is hardly more than that missed by many working citizens over the same period."]; White v. Gregory, 1 F.3d 267, 268 (4th Cir.1993)[concluding that plaintiff failed to state a claim because he failed to allege "serious or significant physical or mental injury" from being served only two meals a day on holidays and weekends]; Green v. Ferrell, 801 F.2d 765. 770-71 (5th Cir.1986)[stating that even on a regular, permanent basis, two meals a day may be adequate]; Brzowski v. Ill. Dep't of Corr., No. 15-CV-173-SMY, 2015 WL 1228916, at *4 (S.D.Ill. Mar. 16, 2015)[finding inmate failed to state a claim where he alleged that prison's adoption of two-meal per day system did not meet nutritional guidelines; plaintiff failed to allege that he had lost weight or otherwise suffered adverse health consequences as a result of the new meal plan]; Hernandez v. Santa Rosa Corr. Inst., No. 3:05CV39/MCR/EMT. 2006 WL 1494008, at *4 (N.D.Fla. May 24, 2006) [finding that prisoner who was denied lunch five days per week for four months, but who did not allege that he had suffered physical harm, failed to state a claim for violation of the Eighth Amendment]; Gardner v. Beale, 780 F.Supp. 1073, 1075 (E.D.Va.1991)[holding that providing prisoner with only two meals per day, with an eighteen-hour interval between dinner and brunch, did not satisfy objective component of Eighth Amendment standard], aff'd, 998 F.2d 1008 (4th Cir. 1993).
Additionally, as employees of the SCDC, the Defendants are entitled to Eleventh Amendment immunity in their official capacities as to any claims for monetary damages. The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina, its integral parts, or its officials in their official capacities, by a citizen of South Carolina or a citizen of another state. See Alden v. Maine, 527 U.S. 706 (1999); College Savs. Bank v. Florida Prepaid Educ. v. Halderman, 465 U.S. 89 (1984)[although express language of Eleventh Amendment only forbids suits by citizens of other States against a State, Eleventh Amendment bars suits against a State filed by its own citizens]; Alabama v. Pugh, 438 U.S. 781, 782 (1978); Will v. Michigan Dep't of State Police, 491 U.S. 58, 61-71 (1989); Edelman v. Jordan, 415 U.S. 651, 663 (1974)[stating that "when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its [Eleventh Amendment] sovereign immunity from suit even though individual officials are nominal defendants"](quoting Ford Motor Co. v. Dep't. of Treasury, 323 U.S. 459, 464 (1945)); see also Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996); Bellamy v. Borders, 727 F. Supp. 247, 248-50 (D.S.C. 1989); Coffin v. South Carolina Dep't of Social Servs., 562 F. Supp. 579, 583-85 (D.S.C. 1983); Belcher v. South Carolina Bd. of Corrs., 460 F. Supp. 805, 808-09 (D.S.C. 1978).
While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the states' Eleventh Amendment immunity in § 1983 cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979). Further, although a State may consent to a suit in a federal district court, Pennhurst, 465 U.S. at 99 & n.9, the State of South Carolina has not consented to such actions. To the contrary, the South Carolina Tort Claims Act expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e).
To the extent Plaintiff is attempting to assert claims under South Carolina law, courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of "supplemental jurisdiction." See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). However, as Plaintiff has asserted no valid federal claim, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367: see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002)[affirming district court's dismissal of state law claims when no federal claims remained in the case]. Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999)["[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants"]. Thus, it is also recommended that any state law claims be dismissed.
While a civil action for a state law claim would be cognizable in this Court on its own under the federal diversity statute, that statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). See 28 U.S.C. § 1332(a). Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). Here, Plaintiff and the Defendants all are citizens of South Carolina, such that diversity of citizenship does not exist.
Finally, it should be noted that Plaintiff has failed to bring his case into proper form. By Order entered February 11, 2019, Plaintiff was given an opportunity to provide the necessary information and paperwork, to include a summons form for Defendant Stirling and a Financial Certificate. Plaintiff was further specifically warned that failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 9. Plaintiff thereafter failed to provide a completed and signed Financial Certificate and failed to provide a completed summons form for Defendant Stirling. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion].
Nor has Plaintiff provided any service documents (completed summons forms and completed Forms USM-285) for the Defendants newly named in the Amended Complaint.
Motion to Proceed IFP
Plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO 240)] which is construed as a Motion for Leave to Proceed in forma pauperis (IFP). See 28 U.S.C. § 1915(a)(1), (2). However, he has failed to submit a completed Financial Certificate. As Plaintiff has failed to provide all information necessary to evaluate his motion to proceed IFP (ECF No. 2), it is recommended that his motion be denied.
An inmate signs the Financial Certificate to authorize and consent to the collection of the $350 filing fee in accordance with 28 U.S.C. § 1915(b). After signing the Financial Certificate, an inmate submits the form to an authorized officer of the institution to which he is confined to complete the Financial Certificate with information concerning the inmate's inmate trust account.
Motion for Preliminary Injunction
On March 7, 2019, Plaintiff filed a motion for a preliminary injunction. With respect to any claim for injunctive relief, such relief is an extraordinary remedy which will not be granted unless there is a clear showing of entitlement to relief. The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342, 346-347 (4th Cir. 2009"). judgment vacated on other grounds, 559 U.S. 1089 (2010); see Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 19-20 (2008); Stuhlbarg Int'l Sales Co., Inc., v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001)). In order to obtain such relief, a Plaintiff must establish: 1) the likelihood that the Plaintiff will succeed on the merits; 2) the likelihood of irreparable harm to the Plaintiff if the injunction is not granted; 3) that the balance of equities tips in his favor; and 4) the injunction is in the public interest. Winter, 555 U.S. at 20. All four requirements must be satisfied. The Real Truth About Obama, Inc., 575 F.3d at 346. Further, to obtain relief Plaintiff must demonstrate more than the "possibility" of irreparable harm, because the Supreme Court has held that standard is "inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the Plaintiff is entitled to such relief." The Real Truth About Obama, Inc., 575 F.3d at 346 (citing Winter, 555 U.S. at 19-22).
Here, Plaintiff has failed to address any of the factors outlined in Winter. As discussed above, it is unlikely Plaintiff will succeed on the merits of his case. Moreover, to the extent Plaintiff is requesting a transfer to another institution, prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983)[no constitutional right under the Due Process Clause to a particular security classification or prison placement]. Plaintiff has failed to show a likelihood of success on his medical claims, as they appear to be a disagreement between Plaintiff and the medical professionals at the prison with respect to the medical care he is receiving, which is not cognizable under § 1983. Lamb v. Maschner, 633 F. Supp. 351, 353 (D.Kan. 1986). He also may be challenging co-payments for medical care, which does not rise to the level of a § 1983 violation. See Ham v. Stirling, No. 13-3178, 2015 WL 1263063 at *9 (D.S.C. Mar. 17, 2015)["Prisons and jails are allowed to impose co-payments for medical services if they actually provide medical care to the prisoner."](quoting Cabbagestalk v. Richstad, No. 09-1834, 2009 WL 4040479 at * 9 (D.S.C. Nov. 9, 2009)(emphasis in original)); Clayton v. Ozmint, No. 10-190, 2011 WL 380149, at * *3-4 (D.S.C. Feb. 2, 2011); see also Sturkey v. Ozmint, No. 07-1502, 2009 WL 649569, at * 2 (D.S.C. Mar. 11, 2009)["[D]ebits such as those made for filing fees, medical services, and expenses are not 'deprivations' because the inmate has been provided with a service or good in exchange for the money debited."].
As to the second factor under Winter, Plaintiff has not made a clear showing that he is likely to be irreparably harmed if preliminary relief is denied. Rather, he merely makes a conclusory statement of harm. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) [holding that a court will not grant a preliminary injunction unless the plaintiff first makes a "clear showing" that he will suffer irreparable injury without it, and that the harm "must be neither remote nor speculative, but actual and imminent"]. Third, Plaintiff has not shown that the balance of equities tips in his favor, and finally, Plaintiff has not shown that an injunction is in the public interest. See Nicholas v. Ozmint, No. 05-3472, 2006 WL 2711852, * 5 (D.S.C. Sept. 20, 2006); see also Winter, 555 U.S. at 20 ["In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction"]. Thus, it is recommended that Plaintiff's motion for preliminary injunction and transfer (ECF No. 15) be denied.
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaint with prejudice and without issuance and service of process. It is also recommended that Plaintiff's motions for a preliminary injunction and transfer (ECF No. 15) and to proceed IFP (ECF No. 2) be denied.
As noted above, Plaintiff was previously given notice (ECF No. 9) that some of the above pleading deficiencies could possibly be corrected by factual amendment, but essentially reasserts the same claims in his amended complaint or has raised unexhausted claims such that further amendment would be futile. See Goode v. Central Va. Legal Aid Soc'y, 807 F.3d 619, 623-24 (4th Cir. 2015).
Plaintiff's attention is directed to the important notice on the next page. March 19, 2019
Charleston, South Carolina
/s/_________
Bristow Marchant
United States Magistrate Judge
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 835
Charleston, South Carolina 29402
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).