Price v. Rojes

Filing 14

REPORT AND RECOMMENDATION recommending the district court dismiss this action with prejudice. Objections to R&R due by 7/29/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Magistrate Judge Shiva V. Hodges on 7/15/2020. (lbak)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kenneth R. Price,
Plaintiff,
vs.
Lt. Rojes,
Defendant.

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C/A No.: 1:20-2219-SAL-SVH

REPORT AND
RECOMMENDATION

Kenneth R. Price (“Plaintiff”), proceeding pro se and in forma pauperis,
filed an amended complaint 1 alleging a violation of his constitutional rights by
Lt. Rojes (“Defendant”), an employee at Turbeville Correctional Institution.
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.
I.

Factual and Procedural Background
Plaintiff alleged that on December 20, 2018, Defendant was careless in

driving a van with inmates in Bennettsville, South Carolina. [ECF No. 9 at 4–
5]. He alleges Defendant placed the car in reverse at a traffic light, causing
The court previously issued an order and notice notifying Plaintiff of
deficiencies in his original complaint and permitting him an opportunity to file
an amended complaint. Plaintiff filed an amended complaint on July 15, 2020.
[ECF No. 9].
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Plaintiff to snap his neck snap as he turned to look behind him. Id. Defendant
did not call an ambulance to take Plaintiff from the scene of the accident. He
alleges the doctor refused to see him when he was taken to medical. [ECF No.
9-1].
II.

Discussion
A.

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
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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).
B.

Analysis

A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although
the court must liberally construe a pro se complaint, the United States
Supreme Court has made it clear that a plaintiff must do more than make
conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662,
677‒78 (2009); Bell Atlantic 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, and the reviewing court need only
accept as true the complaint’s factual allegations, not its legal conclusions.

Iqbal, 556 U.S. at 678‒79.
To allege an Eighth Amendment claim, an inmate must allege facts that
indicate: (1) that objectively the deprivation suffered or harm inflicted “was

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‘sufficiently serious,’ and (2) that subjectively the prison officials acted with a
‘sufficiently culpable state of mind.’” Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir.
1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “Only extreme

deprivations are adequate to satisfy the objective component of an Eighth
Amendment claim regarding conditions of confinement.” De’Lonta v. Angelone,
330 F.3d 630, 634 (4th Cir. 2003) (citation omitted). To demonstrate such
extreme deprivation, Plaintiff “must allege ‘a serious or significant physical or
emotional injury resulting from the challenged conditions.’” Id. at 634 (quoting

Strickler, 989 F.2d at 1381). The subjective prong requires the plaintiff to
allege facts that indicate a particular defendant acted with deliberate
indifference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate
indifference is a very high standard—a showing of mere negligence will not
meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v.

Gamble, 429 U.S. 97, 105-06 (1976)).
Plaintiff’s claims sounds in negligence, which does not give rise to a
federal constitutional claim. See Spencer v. Knapheide Truck Equip. Co., 183
F.3d 902, 906-07 (8th Cir. 1999) (citations omitted) (holding that injuries
sustained from transportation in vehicles with no seatbelts failed to present a
“substantial risk of serious harm,” and “constitute[d] negligence at most”);

Brown v. Walton, No. 3:17CV338, 2018 WL 3946534, at *4 (E.D. Va. Apr. 16,
2018) (finding injured inmate alleged only negligence when officer drove
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recklessly knowing that inmate had no operable seatbelt); Atkins v. Lofton,
373 F. App’x 472, 473 (5th Cir. 2010) (citation omitted) (holding that
“unfortunate fall from the stretcher was the result of the ERT’s carelessness
or negligence, neither of which constitutes deliberate indifference”); Reynolds

v. Powell, 370 F.3d 1028, 1031–32 (10th Cir. 2004) (finding that slippery
conditions arising from standing water in shower was not a condition that
posed a substantial risk of serious harm, even where inmate was on crutches
and warned employees that he faced a heightened risk of failing); Beasley v.

Anderson, 67 F. App’x 242, 242 (5th Cir. 2003) (citations omitted) (holding slip
and fall claim sounded in negligence and was insufficient to allege a
constitutional claim).
To the extent Plaintiff believes he was denied medical treatment, he has
failed to show Defendant knew that he needed an ambulance and had a
“sufficiently culpable state of mind” in failing to request an ambulance. The
undersigned recommends Plaintiff’s amended complaint be summarily
dismissed.
III.

Conclusion and Recommendation
By order issued on June 25, 2020, the undersigned provided Plaintiff an

opportunity to correct the defects identified in his complaint and further
warned Plaintiff if he failed to timely file an amended complaint or failed to
cure the identified deficiencies, the undersigned would recommend to the
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district court the action be dismissed without leave for further amendment. As
discussed herein, Plaintiff’s amended complaint fails to correct the deficiencies,
and like the original complaint, fails to state a claim upon which relief can be
granted. Accordingly, the undersigned recommends the district court dismiss
this action with prejudice. See Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807
F.3d 619, 630 (4th Cir. 2015)).
IT IS SO RECOMMENDED.

July 15, 2020
Columbia, South Carolina

Shiva V. Hodges
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.”

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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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