C/A No. 0:19-3039-RMG-PJG
REPORT AND RECOMMENDATION
The plaintiff, Deniz Breadmore Lobo, a self-represented state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915; § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Complaint in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without issuance and service of process.
At the time he filed this matter, Plaintiff was an inmate in the J. Reuben Long Detention Center in Conway, South Carolina. Plaintiff indicates he is now an inmate in the South Carolina Department of Corrections. (ECF No. 7.)
I. Procedural Background
Plaintiff was formerly an inmate at the J. Reuben Long Detention Center in Conway, South Carolina. Plaintiff claims the jail staff violated his constitutional rights. Plaintiff brings this action for damages pursuant to 42 U.S.C. § 1983 against the director of the jail, Wayne Owens, in his official and individual capacities. (Compl., ECF No. 1 at 2.)
Plaintiff claims that in September 2019, a lieutenant at the jail prevented Plaintiff from meeting with his public defender in violation of his Sixth Amendment right to counsel. (Id. at 7.) He alleges the lieutenant failed to tell Plaintiff that his public defender was added to Plaintiff's visitation list, and the lieutenant lied to the public defender by saying that Plaintiff refused to meet with him. (Id.) Plaintiff also claims that in October 2019, he was assigned a cellmate even though the cell was only designed for one person, causing unsanitary conditions, and violating the Eighth Amendment's prohibition on cruel and unusual punishment. (Id. at 8.) Further, Plaintiff claims that the jail staff was negligent and grossly negligent because Plaintiff was assigned a top bunk even though he takes medications that make him sleepy. (Id. at 9.) Plaintiff alleges he fell from the top bunk three times between October and December 2019, causing injuries that went untreated. (Id.) Plaintiff claims that these injuries caused by individual staff members are the result of Owens's policies, and he seeks to hold Owens liable under theories of respondeat superior and supervisory liability. (Id. at 4, 7-9.)
As Plaintiff was a pretrial detainee at this time, his claim would be governed by the Fourteenth Amendment, not the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).
A. Standard of Review
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 the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), including 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
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.
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
Initially, Owens is immune from Plaintiff's claims against him in his official capacity as director of the jail, which is run by the Horry County Sheriff's Department. In South Carolina, sheriffs are agents of the state rather than employees of the counties. See Gulledge v. Smart, 691 F. Supp. 947, 954-55 (D.S.C. 1988) (concluding that sheriffs and deputy sheriffs are agents of the state and cannot be sued in their official capacities), aff'd, 878 F.2d 379 (4th Cir. 1989) (table). The Eleventh Amendment bars suits by citizens against non-consenting states brought either in state or federal court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Such immunity extends to arms of the state, including a state's agencies, instrumentalities and employees. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). While sovereign immunity does not bar suit where a state has given consent to be sued, or where Congress abrogates the sovereign immunity of a state, neither of those exceptions applies in the instant case. Accordingly, Owens is immune from Plaintiff's claims against him in his official capacity as director of the jail.
See Hornsby v. Hipp, C/A No. 0:11-1749-RBH-PJG, 2012 WL 3230500, at *2 (D.S.C. July 10, 2012), report and recommendation adopted 2012 WL 3230488; Gore v. Thompson, C/A No. 0:08-01850-RBH, 2009 WL 2972935, at *3 (D.S.C. Sept. 10, 2009).
Congress has not abrogated the states' sovereign immunity under § 1983, see Quern v. Jordan, 440 U. S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e). --------
As to Plaintiff's claims against Owens in his individual capacity, Plaintiff fails to state a claim upon which relief can be granted. A legal action under 42 U.S.C. § 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). To state a claim under § 1983, a plaintiff must allege: (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). But here, Plaintiff expressly states that Owens was not personally involved in the purported constitutional violations. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution). Rather, Plaintiff seeks to hold Owens liable under a theory of respondeat superior, which is not available in § 1983 suits. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) ("In order for an individual to be liable under § 1983, it must be 'affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights. The doctrine of respondeat superior has no application under this section.' ") (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). To the extent Plaintiff raises a claim for supervisory liability, he fails to plead any facts that would plausibly show that Owens was aware of Plaintiff's risk of injury, was deliberately indifferent to that risk, or that his inaction caused any injury. See generally Carter v. Morris, 164 F.3d 215, 221 (4th Cir.1999); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Therefore, Plaintiff fails to state a claim upon which relief can be granted against Owns in his individual capacity.
For the foregoing reasons, it is recommended that the Complaint be dismissed without prejudice and without issuance and service of process. January 15, 2020
Columbia, South Carolina
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).