Harley v. South Carolina Department of Correction

Filing 25

ORDER AND OPINION adopting 20 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 12 Motion to Dismiss for Lack of Jurisdiction. The Court DISMISSES AS MOOT this action. Signed by Honorable Richard M Gergel on 6/30/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Sterling L. Harley, #278871,

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Civil Action No. 2: 16-3925-RMG

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Plaintiff,

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V.

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ORDER AND OPINION

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South Carolina Department of Corrections, )
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Defendant.

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This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendant's motion to dismiss be granted. For the reasons set forth
below, the Court adopts the Report and Recommendation.

I.

Background
Plaintiff was an inmate at Ridgeland Correctional Institution ("RCI") when he filed the

present action was filed. He alleges that he is in imminent danger of serious injury or death from
two other inmates at RCI, and on December 16, 2016 he filed the present action for injunctive
relief under§ 1983. For relief, Defendant "would like for this court to move forth with an lawsuit
and immediately ask for an separation from this institutional away from the other two inmates,
also look into this matter at hand." (Dkt. No. 1 at 5.) The complaint asserts no claim for money
damages. Defendant represents that Plaintiff was transferred to Turbeville Correctional Institution
("TCI") on December 21, 2016 (which was before service of the complaint in this action). The
two allegedly threatening inmates whom Defendant complains of remain at RCI.

II.

Discussion
As the Magistrate Judge determined, Plaintiffs transfer to TCI moots this action. "[A]s a

general rule, a prisoner's transfer or release from a particular prison moots his claim for injunctive

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and declaratory relief with respect to his incarceration there." Rende/man v. Rouse, 569 F.3d 182,
186 (4th Cir. 2009) (citations omitted). Defendant does not argue that injunctive relief is not moot.
Rather, he opposes the motion to dismiss and objects to the Report and Recommendation by
attempting to assert a claim for money damages for injuries allegedly caused by inmates at RCI.
(Dkt. Nos. 18, 22.) But as the Magistrate Judge determined, the sole Defendant in this action has
Eleventh Amendment immunity from any claim for money damages. See Will v. Mich. Dep 't of

State Police, 491 U.S. 58, 67 (1989). Plaintiff must seek money damages from the State of South
Carolina in the South Carolina courts, not federal court.
Further, "it is axiomatic that the complaint may not be amended by the briefs in opposition
to a motion to dismiss." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984).
The Magistrate Judge observed that Plaintiff might be attempting to assert a failure-to-protect case
under§ 1983, and in the Report and Recommendation explained to Plaintiff that to bring a§ 1983
action he must move, by June 22, 2017, to amend his complaint to name persons as defendants,
not the state or its departments. (Dkt. No. 20 at 5.) Plaintiff was informed that a motion to amend
must include a proposed amended complaint and proposed service documents (id.) , but he filed no
such motion.

III.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge as the Order of the Court, GRANTS the motion to dismiss, and DISMISSES

AS MOOT this action.
AND IT IS SO ORDERED.

R~M§fgel

United States District Court Judge

June ~ L~ 2017
Charleston, South Carolina
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