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Kershaw v. Thompson

Oct 31, 2018
Civil Action No. 7:18-2780-BHH-KFM (D.S.C. Oct. 31, 2018)


Civil Action No. 7:18-2780-BHH-KFM


James Demarlow Kershaw, Plaintiff, v. Alonzo Thompson, Defendant.


The plaintiff, James Demarlow Kershaw, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. The plaintiff is a pretrial detainee at the Spartanburg County Detention Center and alleges violations of his constitutional rights (doc.1). Pursuant to the provisions of Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983, and submit findings and recommendations to the district court.


The plaintiff has submitted an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO 240) to this Court pursuant to 28 U.S.C. § 1915(a)(1) (doc. 2). A review of the motion reveals that the plaintiff does not have the funds to prepay the filing fee. The plaintiff's motion for leave to proceed in forma pauperis is GRANTED (Id.).


Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review the complaint for relief and submit findings and recommendations to the District Court. The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 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, 391 (4th Cir. 1990).

In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.


In the underlying matter, the plaintiff names Alonzo Thompson, the Chief of the Spartanburg Police Department, as the sole defendant in this action. In the complaint, the plaintiff appears to allege that the defendant is responsible for his being shot on November 23, 2017, by Officer Stacy Smith of the Spartanburg Police Department. The record reflects that the plaintiff has already filed a lawsuit which is currently pending before the court which arises out of the same operative facts as the instant action. See Kershaw v. Smith, C. A.No. 7:18-1079-BHH-KFM. The plaintiff seeks monetary damages.


This complaint is filed pursuant to 42 U.S.C. § 1983, which "'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 "creates a private right of action to vindicate violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

To the extent the plaintiff alleges the defendant is liable on a theory of respondeat superior for the actions of another police officer, that doctrine is generally inapplicable to Section 1983 claims. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) ("Section 1983 will not support a claim based on a respondeat superior theory of liability.") (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); Vinnedge v. Gibbs, 550 F.2d 926, 928-29 (4th Cir. 1977) (doctrine of respondeat superior has no application under § 1983).

Further, to the extent, the plaintiff is attempting to set forth a claim based on supervisory liability, he fails to state a claim. To hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, the plaintiff must allege facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an "affirmative causal link" between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994). In Randall v. Prince George's County, the Fourth Circuit concluded that, "[u]nder the first prong of Shaw, the conduct engaged in by the supervisor's subordinates must be 'pervasive,' meaning that the 'conduct is widespread, or at least has been used on several different occasions.'" 302 F.3d 188, 206 (4th Cir. 2002) (quoting Shaw, 13 F.3d at 799). The petitioner has made no allegation that Officer Smith's conduct towards him in this single incident is pervasive. Furthermore, in establishing deliberate indifference under Shaw's second prong, a plaintiff "[o]rdinarily . . . cannot satisfy his burden of proof by pointing to a single incident or isolated incidents . . . for a supervisor cannot be expected . . . to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct." Id. (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)). Here the plaintiff fails to satisfy his burden of proof as he points to a single incident. The plaintiff has also failed to set forth any factual allegations demonstrating that a response by the defendant was inadequate and/or that his inaction caused any constitutional injury. Thus, the defendant cannot be held liable under a supervisory liability theory under § 1983 for the plaintiff's alleged injuries.

Finally, because the present action is duplicative of the action already pending in this Court, it should be dismissed. "[D]istrict courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party." Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992); see also, e.g., Reynolds v. Third Circuit Pub. Def. Office, C.A. No. 4:17-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted by 2018 WL 1124592 (D.S.C. Mar. 1, 2018) (summarily dismissing duplicate case as frivolous). "[R]epetitious litigation of virtually identical causes of action may be dismissed under 28 U.S.C. § 1915 as frivolous." Paul v. de Holczer, C.A. No. 3:15-2178-CMC-PJG, 2015 WL 4545974 (D.S.C. July 28, 2015) (holding that "the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency"), affirmed by 631 Fed. App'x. 197 (4th Cir. February 4, 2016).

To the extent the plaintiff seeks additional claims or defendants to C. A. No. 7:18-1079-BHH-KFM, he may attempt to do so only by filing a written motion to amend his pleading in that case. Therefore, in the interests of judicial economy and efficiency, it is recommended that the instant complaint be summarily dismissed.


The plaintiff cannot cure the defects in his complaint by mere amendment. See generally Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). Accordingly, the undersigned recommends that the district court decline to automatically give the plaintiff leave to amend and dismiss this action without prejudice and without issuance and service of process.


s/ Kevin F. McDonald

United States Magistrate Judge October 31, 2018
Greenville, South Carolina

The plaintiff's attention is directed to the important notice of the next 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

300 East Washington Street, Room 239

Greenville, South Carolina 29601

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

Summaries of

Kershaw v. Thompson

Oct 31, 2018
Civil Action No. 7:18-2780-BHH-KFM (D.S.C. Oct. 31, 2018)
Case details for

Kershaw v. Thompson

Case Details

Full title:James Demarlow Kershaw, Plaintiff, v. Alonzo Thompson, Defendant.


Date published: Oct 31, 2018


Civil Action No. 7:18-2780-BHH-KFM (D.S.C. Oct. 31, 2018)

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