Greene v. Perry Correctional Institution

Filing 8

ORDER AND NOTICE allowing Plaintiff an opportunity to correct the defects in his complaint by filing an amended complaint by July, 17, 2018, along with any appropriate service documents. If Plaintiff fails to file an amended c omplaint or fails to cure the deficiencies identified in this order, the court will recommend to the district court that the claims be dismissed. (Amended complaint due by 7/17/2018.) Signed by Magistrate Judge Shiva V. Hodges on 7/3/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Wilton Q. Greene, III, #351286,
Plaintiff,
vs.
Perry Correctional Institution,
Defendant.

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C/A No.: 1:18-1731-BHH-SVH

ORDER AND NOTICE

Wilton Q. Greene, III, (“Plaintiff”), proceeding pro se and in forma
pauperis, filed this complaint against Perry Correctional Institution (“PCI”)
alleging a violation of his constitutional rights. Pursuant to the provisions of
28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge.
Standard of Review
Plaintiff filed his complaint 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 a case upon a finding that the action fails to state a claim on which
relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i),
(ii). 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. 25, 31 (1992). A
claim based on a meritless legal theory may be dismissed sua sponte under
28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by
attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal
court is charged with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially meritorious case. Erickson

v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the
plaintiff’s allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d
70, 74 (2d Cir. 1975). 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. Nevertheless,
the requirement of liberal construction does not mean that the court can
ignore a clear failure in the pleading to allege facts that set forth a claim
currently cognizable in a federal district court. Weller v. Dep’t of Soc. Servs.,
901 F.2d 387, 390–91 (4th Cir. 1990).
Factual and Procedural Background
Plaintiff, an inmate incarcerated at PCI, filed this complaint alleging
he was denied outside recreation for ten months beginning August 14, 2017.
[ECF No. 1 at 5]. Plaintiff also states he requested dental care in January
2018, but did not receive treatment until May 2018. Id. Plaintiff also states
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he experienced sharp pain, was spitting blood, and could only eat with the
right side of his mouth. Id. Plaintiff also claims he suffers from back pain. Id.
Plaintiff seeks monetary damages. Id. at 6.
Discussion
To state a claim under 42 U.S.C. § 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). In this case, Plaintiff names PCI as the sole defendant. However,
PCI is not a person amenable to suit under § 1983, but a collection of
buildings, facilities, and grounds that do not act under color of state law. See

Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690 (1978); Nelson v. Lexington
Cnty. Det. Ctr., No. 8:10-2988-JMC, 2011 WL 2066551, at *1 (D.S.C. May 26,
2011) (finding that the plaintiff failed to establish that the Lexington County
Detention Center, “as a building and not a person, is amenable to suit under
§ 1983”). Accordingly, Plaintiff’s complaint is subject to summary dismissal.
NOTICE CONCERNING AMENDMENT
Plaintiff may attempt to correct the defects in his complaint by filing an
amended complaint by July 17, 2018, along with any appropriate service
documents. Plaintiff is reminded that an amended complaint replaces the
original complaint and should be complete in itself. See Young v. City of
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Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an
amended pleading ordinarily supersedes the original and renders it of no
legal effect.”) (citation and internal quotation marks omitted). If Plaintiff files
an amended complaint, the undersigned will conduct screening of the
amended complaint pursuant to 28 U.S.C. § 1915A. If Plaintiff fails to file an
amended complaint or fails to cure the deficiencies identified above, the court
will recommend to the district court that the claims be dismissed.
IT IS SO ORDERED.

July 3, 2018
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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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 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).

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