Price v. Rojes

Filing 7

ORDER AND NOTICE Plaintiff may attempt to correct the defects in his #1 complaint by filing an amended complaint by July 16, 2020, along with any appropriate service documents. Plaintiff is reminded an amended complaint replaces the original and should be complete in itself. 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 without leave for further amendment. (Specific Document due by 7/16/2020.) Signed by Magistrate Judge Shiva V. Hodges on 6/25/2020. (lbak)

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

ORDER AND NOTICE

Kenneth R. Price (“Plaintiff”), proceeding pro se and in forma pauperis,
filed this complaint 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 who did not have seat belts while in
Bennettsville, South Carolina. [ECF No. 1 at 4–5]. He alleges his neck
snapped as he turned to look behind him. Id. He alleges the doctor refused to
see him when he was taken to medical. Id. at 6.

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 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,
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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
‘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
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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 sound 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
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
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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 was responsible for his medical treatment.
NOTICE CONCERNING AMENDMENT
Plaintiff may attempt to correct the defects in his complaint by filing an
amended complaint by July 16, 2020, 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

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

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will recommend to the district court that the claims be dismissed without
leave for further amendment.
IT IS SO ORDERED.

June 25, 2020
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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