Opinion
C. A. 9:23-05493-HMH-MHC
02-28-2024
Kurtino D. Weathersbee, Plaintiff, v. Director Moses Cheetum, Director of Operations, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by Plaintiff Kurtino D. Weathersbee, a pretrial detainee proceeding pro se and in forma pauperis. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order dated November 7, 2023, Plaintiff was advised of pleading deficiencies and given the opportunity to amend. He filed his Amended Complaint on November 2, 2023. ECF No. 6. Because the Amended Complaint also contained pleading deficiencies, another Order was entered on December 14, 2023, again giving Plaintiff the opportunity to amend. Plaintiff filed his Second Amended Complaint on January 5, 2024. ECF No. 21.
This action was originally assigned to Magistrate (now District Court) Judge Jacquelyn D. Austin, and was reassigned to the undersigned on January 26, 2024. See ECF No. 26.
I. BACKGROUND
Records from Bamberg County indicate that Plaintiff has pending criminal charges for murder (case number 2023A05101000145), possession of a weapon during a violent crime (case number 2023A05101000146), and possession of a weapon by a person convicted of a violent felony (case number 2023A0510100147. See Bamberg County Second Judicial Circuit Public Index, https://publicindex.sccourts.org/Bamberg/PublicIndex/PISearch.aspx [search case numbers listed above] (last visited Feb. 26, 2024). At the time Plaintiff filed this action, he was detained at the Bamberg County Detention Center. See ECF No. 1 at 2. He was later transferred to the Barnwell County Detention Center. See ECF No. 17.
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts'
In his second Amendment Complaint, Plaintiff brings claims under 42 U.S.C. § 1983 (§ 1983). He contends his Eighth and Fourteenth Amendment rights have been violated and he alleges he was denied access to legal materials and his attorney. See ECF No. 21 at 3.
Specifically, Plaintiff contends that from August 7 to November 22, 2023, when he was transferred to the Barnwell County Detention Center, Defendant failed to “provide legal access, attorney calls [, and] legal access materials.” ECF No. 21 at 4. Plaintiff asserts that Defendant “fails to adhere to current law and policy” and therefore violated his constitutional rights. Id. In the “Injuries” section of the Second Amended Complaint form, Plaintiff only wrote “N/A.” Id. at 5. As relief, Plaintiff seeks monetary damages. Id.
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, 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), 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, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
This action is subject to summary dismissal for the reasons discussed below.
A. Failure to State a Cognizable Claim
In his Second Amended Complaint, Plaintiff appears to be attempting to assert a claim that Defendant violated his constitutional rights by denying him access to the courts. Plaintiff makes vague and cursory allegations regarding his ability to access legal materials, “legal access,” and calls to his attorney. See, e.g., ECF No. 21 at 3-4. However, any claim concerning access to the courts is subject to dismissal for the reasons below.
Although Plaintiff generally alleges cruel and unusual punishment, denial of due process of law, and equal protection (see ECF No. 21 at 3), he has alleged no facts as to any such claims.
Plaintiff claims that Defendant denies legal calls and “legal adequate access to all inmates to include [Plaintiff].” ECF No. 21 at 4. To the extent Plaintiff, a non-lawyer, is attempting to allege claims on behalf of other inmates, he may not do so. 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's suit is “confined to redress for violation of his own personal rights and not one by him as a knight-errant for all prisoners”). 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).
“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries.” Bounds v. Smith, 430 U.S. 817, 828 (1977). Nevertheless, the Fourth Circuit has held that local jails, designed for temporary detainment, are generally not required to have a law library. See Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987); see also United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir. 1978) (discussing applicability of Bounds, 430 U.S. 817, to pretrial detainees).
Plaintiff alleges claims about an approximately four-month time when he was being held at the Bamberg County Detention Center awaiting trial on criminal charges. Inmates being temporarily detained in county facilities awaiting criminal trials do not have an unfettered constitutional right to a law library. See Jones v. Lexington Cnty. Det. Ctr., 586 F.Supp.2d 444, 448 (D.S.C. 2008). Review of the allegations in Plaintiff's Second Amended Complaint indicate that his contentions do not raise a plausible federal claim under 42 U.S.C. § 1983. Significantly, where, as in the present case, an inmate is represented by counsel on pending criminal charges, “he ha[s] no constitutional entitlement to access to an adequate law library or other legal materials.” Engel v. Francis, No. 3:09-cv-359, 2010 WL 3894118, at *3 (E.D. Va. Oct. 4, 2010).
Additionally, as to Plaintiff's allegation that he was denied access to counsel, Plaintiff does not allege he has been denied complete access to his attorney but only that, for a few months, he was denied phone calls to his attorney. Courts have noted that, “[a]lthough prisoners have a constitutional right of meaningful access to the courts, prisoners do not have a right to any particular means of access, including unlimited telephone use.” Engel, 2010 WL 3894118, at *3 (quotation marks and citations omitted). Plaintiff does not allege any specific instances of a denial of a phone call to his attorneys and only makes a blanket assertion that he was denied phone calls. Further, Plaintiff's allegations do not demonstrate that he was denied all access to his attorney. As one court explained in a case in which the plaintiff made similar allegations to those made by Plaintiff in this case regarding denial of phone calls to his attorney:
Plaintiff's claim here fails because there is no suggestion from the complaint that plaintiff was unable to contact his attorney. . . to prepare for his criminal case by means other than the telephone. There is no suggestion, for example, that plaintiff could not write to his attorney . . . or was unable to visit with [his attorney] for the purpose of preparing for his defense. The only claim is that plaintiff could not contact [his attorney] by telephone. But plaintiff has no constitutional right to do so by means of use of a telephone. Moreover, even assuming that plaintiff was unable to contact . . . defense counsel, there is no indication from the complaint that any such denial of access resulted in unfair prejudice to plaintiff.Saunders v. Dickerson, No. 1:07-cv-1094-LMB-BRP, 2008 WL 2543428, at *4 (E.D. Va. June 25, 2008), aff'd, 313 Fed.Appx. 665 (4th Cir. 2009); Aurelio v. Joyce, 683 Fed.Appx. 731 (10th Cir. 2017) (finding the plaintiff's general allegation that he was denied telephone contact with his attorneys-without regard to the duration of the contact restriction, the nature of the legal proceedings happening at the time, or the type of harm that resulted-was insufficient to show that he plausibly, and not just speculatively, had a claim for relief).
Here, Plaintiff has not alleged facts showing he was denied access to his attorney through means other than a telephone call, such as through letters or confidential personal visits. As such, he has failed to allege facts to state a claim for relief that he was denied access to his attorney. See, e.g., Prince v. Crawford, No. 3:16-cv-02317, 2017 WL 2991350, at *11 (S.D. W.Va. May 31, 2017) (noting that, although the plaintiff alleged he was not able to call his attorney, “he [did] not allege that he was entirely precluded from contacting his attorney through other means or at other times” and, therefore, his claim “falls short of the total denial of access to counsel”), report and recommendation adopted, 2017 WL 2991344 (S.D. W.Va. July 13, 2017).
Further, Plaintiff has made no allegations of any real injury and/or prejudice that Plaintiff suffered or is likely to suffer because of the alleged inadequate access to legal materials while in pretrial detention. See Lewis v. Casey, 518 U.S. 343 (1996) (explaining a plaintiff must allege actual injury resulting from an allegedly inadequate jail library to state a claim under § 1983). In the absence of an alleged actual injury and prejudice to a constitutional right resulting from Plaintiff's lack of access to legal materials, Plaintiff's Second Amended Complaint fails to state a claim against Defendant on which this Court may grant relief. See, e.g., Payne v. Lucas, No. 6:11-cv-01767-DCN, 2012 WL 988137, at *1 (D.S.C. Mar. 2, 2012), report and recommendation adopted, 2012 WL 988133 (D.S.C. Mar. 22, 2012); Crawford v. Nash, No. 4:08-cv-4092-GRA-TER, 2009 WL 580348, at *3 (D.S.C. Mar. 5, 2009). Although Plaintiff alleges that he has been denied access to legal materials and has not been allowed to make phone calls to his attorney, he has failed to allege any specific facts as to how any legal matter has been adversely affected. Indeed, as to his injuries, Plaintiff alleged simply “N/A.” ECF No. 21 at 5. In the absence of any identifiable injury or prejudice, Plaintiff has failed to state a cognizable claim and his claims should be summarily dismissed.
B. Any Claims for Declaratory or Injunctive Relief are Moot
As noted, Plaintiff has been transferred to a new facility. Plaintiff appears to seek only money damages in the present action. However, to the extent he seeks declaratory or injunctive relief as well, such claims are moot and the Court lacks subject matter jurisdiction to grant such relief based on his transfer to a different facility. See, e.g., Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (“[T]he transfer of a prisoner render[s] moot his claim for injunctive and declaratory relief.”); Light v. Justice, No. 2:20-cv-00443, 2023 WL 5005014, at *5 (S.D. W.Va. May 30, 2023), report and recommendation adopted, 2023 WL 5002867 (S.D. W.Va. Aug. 4, 2023).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
Plaintiff's attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).