-SVH McDaniels v. SC Department of Corrections et al

Filing 13

REPORT AND RECOMMENDATION re 1 Complaint recommending that the District Court dismiss the defendant "S.C. Dept. of Corrections" without prejudice and without issuance and service of process. Objections to R&R due by 7/30/2009. Signed by Magistrate Judge Thomas E Rogers, III on 7/10/09. (swel, )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Kevin Wayne McDaniels, #254398 aka Kevin W. McDaniels, Plaintiff, vs. S.C. Dept. of Corrections et al.; Jon Ozmint, Dir of S.C. Dept of Corrections; Samuel B. Glover, Dir of S.C Dept of PPPS; Dr. Beiner, Director of SCDC Health Services; Anderson & Shaw Hardwood Flooring Inc.; John Carson, P.I. Business Mgr.; sued in their individual and official capacity, Defendants. _____________________________________________ ) C/A No. 4:09-1732-TLW-TER ) ) ) REPORT AND RECOMMENDATION ) for partial disposition ) to dismiss the S.C. Dept. of Corrections ) ) ) ) ) ) ) ) ) ) )

The plaintiff, Kevin Wayne McDaniels, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983.1 Plaintiff is an inmate at Tyger River Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC), and he files this action in forma pauperis under 28 U.S.C. § 1915. The complaint appears to name several governmental employees as defendants.2 The plaintiff raises many claims related to his prison conditions. Plaintiff seeks money damages and injunctive relief. The defendant "S.C. Dept. of Corrections" should be summarily dismissed from this action.3

Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Title 28 U.S.C. § 1915A (a) requires an initial review of a "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." In an order entered contemporaneously with this report and recommendation, the court authorizes service of process upon defendants Jon Ozmint, Samuel B. Glover, Dr. Beiner, Anderson & Shaw Hardwood Flooring, Inc., and John Carson.
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Pro Se Review pursuant to the Prison Litigation Reform Act (PLRA) 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; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). This review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The complaint herein 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. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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." Title 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). Further, the plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and "seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may

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be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. This court is required to liberally construe pro se documents, Erickson v. Pardus, 127 S.Ct. 2197 (2007), holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97 (1976); Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard, however, a portion of the complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Discussion The defendant "S.C. Dept. of Corrections" is not a "person" subject to suit in a § 1983 civil rights action. In order to state a claim for damages under 42 U.S.C. § 1983, an aggrieved party must sufficiently allege that he or she was injured by "the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws" by a "person" acting "under color of state law." See 42 U.S.C. § 1983; Monell v. Dep't. of Soc. Serv., 436 U.S. 658, 690 & n.55 (1978) (noting that for purposes of § 1983 a "person" includes individuals and "bodies politic 3

and corporate"). See generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (2002). It is well settled that only "persons" may act under color of state law, and, therefore, a defendant in a Section 1983 action must qualify as a "person." The defendant "S.C. Dept. of Corrections" is a department, group of buildings, or a facility. Inanimate objects such as buildings, facilities, and grounds cannot act under color of state law. See Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (finding that California Adult Authority and San Quentin Prison not "person[s]" subject to suit under 42 U.S.C. § 1983); Brooks v. Pembroke City Jail, 722 F. Supp. 1294, 1301(E.D.N.C. 1989) ("Claims under § 1983 are directed at `persons' and the jail is not a person amenable to suit."). Therefore, the plaintiff failed to state a cognizable § 1983 claim against defendant "S.C. Dept. of Corrections." Additionally, to the extent that the plaintiff is really seeking money damages from the State of South Carolina pursuant to § 1983, the State of South Carolina has Eleventh Amendment immunity. The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts, such as a state agency or department. The Eleventh Amendment provides, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." See Fed. Maritime Comm. v. South Carolina State Ports Auth., 535 U.S. 743, 747 (2002); Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (Congress exceeded its authority in making Age Discrimination in Employment Act [ADEA] applicable to States); and Belcher v. South Carolina Bd. of Corr., 460 F. Supp. 805, 808-809 (D.S.C. 1978). See also Pennhurst State Sch. & Hosp. v. Halderman, 465 4

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). Under Pennhurst State Sch. & Hosp., a state must expressly consent to suit in a federal district court. Id. The State of South Carolina has not consented to suit in a federal court. See S.C. Code Ann. § 15-78-20(e) (1976) (statute 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). It is clear that the Department of Corrections is an agency of the State of South Carolina and functions as an arm of the state. Belcher v. South Carolina Bd. of Corr., 460 F. Supp. 805, 808-809 (D.S.C. 1978). Therefore, the defendant "S.C. Dept. of Corrections" should be dismissed based upon Eleventh Amendment immunity. Recommendation Accordingly, it is recommended that the District Court dismiss the defendant "S.C. Dept. of Corrections" without prejudice and without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).

July 13, 2009 Florence, South Carolina

s/Thomas E. Rogers, III Thomas E. Rogers, III United States Magistrate Judge

The plaintiff's attention is directed to the important notice on the next page.

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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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In 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). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court P. O. Box 2317 Florence, South Carolina 29503 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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