Smith v. Demory

Full title: Shannon Maurice Smith, Jr., # 1569752, Plaintiff, v. Director Randy…

Court: UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Date published: Feb 21, 2020

CIVIL ACTION NO. 9:19-1771-HMH-BM (D.S.C. Feb. 21, 2020)

Opinion

CIVIL ACTION NO. 9:19-1771-HMH-BM

02-21-2020

Shannon Maurice Smith, Jr., # 1569752, Plaintiff, v. Director Randy Demory, Captain K. Jucumin, Ms. Schuller, Captain Phyall and Berkeley County, Defendants.

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983.¹ Plaintiff, a pre-trial detainee at the Berkeley County Detention Center, alleges violations of his constitutional rights by the named Defendants.

1 42 U.S.C. § 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 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).

The Defendants filed a motion to dismiss for failure to state a claim on September 17, 2019. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on September 18, 2019, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case. Plaintiff thereafter filed a response in opposition to the Defendants' motion on October 15, 2019, with a supplement to that response being filed on October 16, 2019. Defendants filed a reply memorandum on October 22, 2019, and Plaintiff filed a second response in opposition on November 5, 2019.

The Defendants' motion is now before the Court for disposition.²

2 This case was automatically 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 Rule 73.02(B)(2)(d), D.S.C. The Defendants have filed a motion to dismiss. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.

Allegations of the Complaint

Plaintiff has named as Defendants in this action Berkeley County, as well as Demory, Jacumin and Phyall (all employees of the Detention Center) in their official capacities.³ Plaintiff is suing these Defendants under § 1983 for violations of his First Amendment Rights. Complaint (Court Docket No. 1, at p. 4, § § A and B). Plaintiff alleges that he is being discriminated against due to his religious beliefs, including that his mail is being opened and read outside of his presence. Plaintiff also alleges that he is not being provided with a kosher diet, to which he is constitutionally entitled, and that he has been placed in a one man cell and had canteen items and other privileges taken away without a hearing "because of my complaints about them getting my religious diet correct". Plaintiff further complains about the conditions where he was housed by the Defendants, all due to him exercising his First Amendment rights. Plaintiff seeks declaratory prospective relief ordering that his rights not be violated, that his medical bills be paid for, and that he be provided a "complete [kosher] diet". Complaint, ¶ VI (Court Docket No. 1, at p. 6.

3 Plaintiff also originally named a "Ms. Schuller" as a party Defendant. However, this Defendant has never been served with process, and as part of his response to the Defendants' motion, Plaintiff has consented to the dismissal of Schuller as a party Defendant in this case. See Plaintiff's Response (Court Docket No. 28, p. 2).

Discussion

When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine Holding, LLC, 318 F.Supp. 2d 136, 144 (S.D.N.Y. 2004)["[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable."]. Further, the Federal Court is also charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4^th Cir. 1990). Here, after careful review of the allegations of the Complaint and the arguments of the parties pursuant to these standards, the undersigned finds that the Defendants' motion should be granted, in part, and denied, in part.

Initially, the Defendant Berkeley County is entitled to dismissal as a party Defendant because it is not responsible for, and has no control over, the operation of the Berkeley County Detention Center. Rather, it is the Sheriff of Berkeley County who operates and runs the Detection Center. See S.C.Code Ann. § 24-5-10 [Providing that County Sheriff's are responsible for the operation of County jails]; see also Cobb v. South Carolina, No. 13-2370, 2014 WL 4220423, at * 2, 7 (D.S.C. Aug. 25, 2014) [Finding that because the County has no control over the operations or policy of the County jail, it cannot be held liable for events that take place there]. Sheriffs and sheriffs' deputies are not even county employees. Cone v. Nettles, 417 S.E.2d 523, 524 (S.C. 1992). Indeed, in light of this well established authority and case law, Plaintiff has himself agreed to the dismissal of Berkeley County as a Defendant in this case. See Plaintiff's Supplemental Response (Court Docket No. 31, p. 1); see also (Court Docket No. 28, p. 2). Therefore, Berkeley County is entitled to dismissal as a party Defendant in this case.

The remaining Defendants (Demory, Jacumin, and Phyall) argue that they are also entitled to dismissal as party Defendants, on the ground of Eleventh Amendment immunity. However, these Defendants are not entitled to dismissal on this ground. As sheriff's deputies and employees of the Sheriff of Berkeley County, these Defendants would be subject to suit for damages in their individual capacities under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Hafer v. Melo, 112 S.Ct. 358, 365 (1991); Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir. 1991). Even so, as employees of the Sheriff, these three Defendants are state employees and therefore immune from suit in federal court for damages in their official capacities. Gulledge v. Smart, 691 F.Supp. 947, 954-955 (D.S.C. 1988) [Sheriffs and deputy sheriffs are agents of the state and cannot be sued for damages in their official capacities]. Plaintiff has sued these three Defendants only in their official capacities. See Complaint, ¶ I (B). However, case law indicates that while these Defendants are immune from suit in this Court in their official capacities for damages, Plaintiff may pursue declaratory and/or injunctive relief against them in their official capacities under § 1983. See Ex parte Young, 209 U.S. 123 (1908); Lytle v Griffith, 240 F.3d 404, 408 (4th Cir. 2001)[Ex parte Young authorizes "suit against state officers for prospective equitable relief from ongoing violations of federal law"]. Therefore, as Plaintiff only seeks prospective declaratory relief in this case, these Defendants are not correct that they are entitled to dismissal as Defendants on the ground of Eleventh Amendment immunity from suit in this Federal Court. Cf. Ferola v. McCall, No. 16-547, 2016 WL 11200992, at * 3 (D.S.C. Sept. 19, 2016) [Noting that state employees are subject to suit for injunctive relief in federal court in their official capacities under § 1983], Report and Recommendation not adopted on other grounds, 2017 WL 490113 (D.S.C. Feb. 7, 2017); see also Tankersley v. Almond, 837 F.3d 390, 406 at n. 6 (4^th Cir. 2016) [Finding that "because [plaintiff] seeks injunctive relief, not damages from state officials in their official capacity, this case does not implicate any Eleventh Amendment concerns"]; Hoffman v. Tanner, No. 18-1146, 2018 WL 6787442, at * 2 (D.S.C. Dec. 26, 2018) [Noting that "a litigant may seek injunctive relief from continuous federal law violations by a state officer"], aff'd 770 F.Appx. 54 (4^th Cir. 2019); Woods v. South Carolina Department of Health and Human Services, No. 18-834, 2019 WL 1995136, at * 6-7 (D.S.C. Apr. 18, 2019), adopted by 2019 WL 1995511 (D.S.C. May 6, 2019), appeal dismissed and remanded, 777 F.Appx. 703 (4^th Cir. 2019); Simpson v. SCDC, No. 19-2245, 2020 WL 582321, at * 3 (D.S.C. Feb. 6, 2020) [Noting that federal courts can enjoin state officials in their official capacities].

However, although not entitled to dismissal on the ground asserted, a review of Plaintiff's factual allegations shows that Jacumin and Phyall should nonetheless be dismissed as Defendants. Although state officials may be sued in their official capacities for prospective injunctive relief, in order to proceed with his claim Plaintiff's allegations must nonetheless show that the state official or employee being sued has both the responsibility for the alleged ongoing violations of federal law as well as the authority to provide prospective redress for those alleged ongoing violations. Woods, 2019 WL 1995136, at * 6-7, citing Kobe v. Haley, 666 F.Appx. 281, 299-300 (4^th Cir. 2016); see also Allen v. College of William and Mary, 245 F.Supp. 2d 777, 791 (E.D.Va. 2003) [Noting ex parte Young relief may only be pursued against a state official who has the authority to provide the relief sought]. As set forth and alleged by Plaintiff in his Complaint, the Defendants Jacumin and Phyall are merely correctional officers who work at the Detention Center. There is no indication, nor any factual allegations to show, that either of these two Defendants have any role in setting jail policy. Therefore, these two Defendants are entitled to dismissal because there are no factual allegations to establish a "plausible" clam that either of these two Defendants have the authority to grant Plaintiff the relief he seeks. Iqbal, 129 S.Ct. at 1949 [Plaintiff must set forth factual matters sufficient to state a plausible claim for relief "on its face"]; Wood, 2019 WL 1995136, at * 6-7 [Dismissing claim for prospective injunctive relief against defendant who did not have the authority to grant such relief]; see also Hutto v. S. C. Retirement System, 773 F.3d 536, 550-551 (4^th Cir. 2014) [Finding that because state officials sued in their official capacities lacked the required special relationship to the state action sought to be enjoined by plaintiff as violative of federal law, ex parte Young was inapplicable and defendants were entitled to Eleventh Amendment immunity from suit].

However, because the Defendant Demory is alleged in the Complaint to be the Director of the jail and responsible for overseeing all jail operations, the undersigned finds that Plaintiff has set forth a sufficiently "plausible" claim against this Defendant, at least at this early stage of the proceedings, to allow Plaintiff's claim for injunctive relief to continue against this Defendant. Allen, 245 F.Supp. 2d at 791 [Ex parte Young relief may be pursued against a state official who has the authority to provide the relief sought]; Vogt, 318 F.Supp. 2d at 144 [Finding that Plaintiffs had asserted sufficient facts to allege improper conduct by the named defendants, and that "[w]hether plaintiffs will be able to demonstrate the truth of those facts after discovery is an entirely different question, but plaintiffs are entitled to make the attempt"]; Veney v. Wyche, 293 F.3d 726, 730 (4^th Cir. 2002)["[W]hen [dismissal for failure to state a claim] involves a civil rights complaint, 'we must be especially solicitous of the wrongs alleged' and 'must not dismiss the complaint unless it appears to a certainty the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged'"], citing Harrison v. United Postal Service, 840 F.2d 1149, 1152 (4th Cir. 1988).

Conclusion

Based on the foregoing, it is the recommended that the Defendant Schuller be dismissed as a party Defendant in this case. See, n. 3, supra. It is further recommended that the Defendants Berkeley County, Jacumin and Phyall also all be dismissed as party Defendants in this case for the reasons stated. The Defendant Randy Demory's motion to be dismissed as a party Defendant should be denied.

The parties are referred to the Notice Page attached hereto.

/s/_________

Bristow Marchant

United States Magistrate Judge February 21, 2020
Charleston, South Carolina

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 (4^th 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).