Browning v. Kirkland Correction Insitution

Filing 10

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing the complaint without prejudice, for 8 Report and Recommendations. Signed by Honorable Richard M Gergel on October 17, 2011. (kbos)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

James Cleve Browning,
Plaintiff,
vs.
Kirkland Correction Institution
Defendant.

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Civil Action No.: 3: ll-cv-2258-RMG

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ORDER

Plaintiff James Cleve Browning, an inmate at Evans Correctional Institution, brings this action

pro se and inJormapauperis pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915. Specifically, Plaintiff
alleges he suffered from food poisoning after the kitchen served "cold and spoiled food since we been on
lock down and by law we should have three hot meal a day" and that prison officials "refuse me to go to
medical." (Dkt. No. I at 3). Plaintiff asks the Court to have the South Carolina Department of Health and
Environmental Control ("DHEC") "check into the kitchen for serving spoil[ed] meat also like to suit
them." (Dkt. No. I at 4).
In accordance with 28 U.S.C. § 636(b) and the Local Rules, this matter was referred to the United
States Magistrate Judge for all pretrial proceedings. The Magistrate Judge has issued a Report and
Recommendation that Plaintiff's complaint be summarily dismissed for failure to state a claim upon
which relief may be granted. (Dk!. No.8).
Plaintiff was advised by the Magistrate Judge of the procedures and requirement for filing
objections to the Report and the serious consequences of failing to do so. Plaintiff has failed to object to
the R&R. As explained herein, this Court has reviewed the Record for any errors of law, agrees with the
Report and Recommendation, and therefore dismisses the Plaintiffs complaint.

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LAW/ANALYSIS

The Magistrate Judge only makes recommendations to this Court. The recommendations of the
Magistrate Judge have no presumptive weight and the responsibility for making a final determination
remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with
making a de novo determination of those portions of the Report and Recommendation to which specific
objection is made.

Additionally, the Court may "accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate." 28 U.S.c. § 636(b)(1). The Court may also
"receive further evidence or recommit the matter to the magistrate with instructions." Id In the absence
of specific objections to the Report and Recommendation, the Court is not required to give any
explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which allows "a party who has been
deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte

Dunes at Monterey Ltd, 526 U.S. 687, 707 (1999). "To state a claim under § 1983, a plaintiff must allege
[1] the violation of a right secured by the Constitution and laws of the United States, and [2] must show
that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins,
487 U.S. 42,48 (1988) (emphasis added).
As only "persons" may act under color of state law, a defendant in a § 1983 action must qualify
as a "person." See Allison v. California Adult A uth. , 419 F.2d 822, 823 (9th Cir. 1969) (California Adult
Authority and San Quentin Prison not "persons" subject to suit under 42 U.S.C. § 1983); Jones v.

Lexington County Detention Center, 586 F.Supp.2d 444, 451 (D.S.C. 2008) (holding Lexington County
Detention Center is a physical institution that is not subject to § 1983 liability); Preval v. Reno, 57
F.Supp.2d 307, 310 (E.D. Va. 1999) ("[T]he Piedmont Regional Jail is not a 'person,' and therefore not
amenable to suit under 42 U.S.C. § 1983."), rev'd on other grounds, 2000 WL 20591, No. 99-6950 (4th
Cir. 2000). The state prison facility named in Plaintiffs complaint is not a "person" amenable to suit
under § 1983; therefore, the Defendant facility is entitled to summary dismissal.

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Plaintiff also requests relief in the fonn of the Court directing DHEC, a state agency, to
investigate Kirkland's kitchen facilities. Under 28 U.S.C § 1361, district courts are granted "original
jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perfonn a duty owed to the plaintiff." Therefore, on its face, § 1361
extends federal mandamus jurisdiction only to federal officers or employees.

See United States v.

Oncology Assocs., 198 F.3d 502, 5lO (4th Cir. 1999). As DHEC is a state agency, the Court lacks the
necessary jurisdiction to grant the relief sought by the Plaintiff. I
CONCLUSION
The Court, after a thorough review of the Report and Recommendation of the Magistrate Judge
and the relevant case law, finds the Magistrate applied sound legal principles to the facts of this case.
Therefore, this Court adopts the Magistrate Judge's Report and Recommendation as the Order of this
Court and the Plaintiffs Complaint is DISMISSED without prejudice.

AND IT IS SO ORDERED.

October 1..:7 20 11
Charleston, South Carolina

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As the Magistrate Judge noted in his Report and Recommendation, should the Plaintiff tum to 28 U.S.C. § 1651,

the "all writs statute," as the source of his desired writ, this Court would still lack the appropriate jurisdiction to
grant it. § 1651 writs are limited to cases where federal courts are acting in aid of their respective jurisdictions. See
28 U.S.C. § 1651; Gurley v. Superior Court ofMecklenburg County, 411 F.2d 586, 587-88 and nn.2-4 (4th Cir.
1969).

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