Finch v. McCormick Correctional Institution

Filing 8

REPORT AND RECOMMENDATION recommending that the District Court dismiss the 1 Complaint filed by Profit J Finch without prejudice and without issuance and service of process. Objections to R&R due by 4/6/2009. Signed by Magistrate Judge Thomas E Rogers, III on 3/19/09. (swel, )

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Profit J. Finch, # 308703, Plaintiff, vs. McCormick Correctional Institution, Defendant. ________________________________________________ ) C/A No. 4:09-0487-MBS-TER ) ) ) ) ) Report and Recommendation ) ) ) ) ) Background of this Case The plaintiff is an inmate at the Wateree River Correctional Institution of South Carolina Department of Corrections. The plaintiff has brought suit against the McCormick Correctional Institution (of South Carolina Department of Corrections) for placing him in a top bunk when he resided there. The plaintiff, who, according to the SCDC website (www.doc.sc.gov), is serving a twelveyear sentence for felony DUI resulting in death, alleges that he was given a "top bunk" despite his "disabled" status. He was injured when he fell from the top bunk while getting down to use the toilet. The plaintiff filed a grievance (No. 1046-06). He received his final answer to the grievance on June 13, 2007. 1 Discussion Under established local procedure in this judicial district, a careful review1 has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. 1915, 28 U.S.C. 1915A, and the Prison Litigation Reform Act. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979) (recognizing the district court's authority to conduct an initial screening of any pro se filing);2 Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The plaintiff is a pro se litigant, and thus his pleadings are accorded liberal construction. See Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam); Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7 (1980)(per curiam); and Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). Even under this less stringent standard, the 1983 complaint is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear Pursuant to the provisions of 28 U.S.C. 636(b)(1)(B) and Local Civil Rule 73.02 (DSC), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Boyce has been held by some authorities to have been abrogated in part, on other grounds, by Neitzke v. Williams, 490 U.S. 319 (1989) (insofar as Neitzke establishes that a complaint that fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition merit sua sponte dismissal under 28 U.S.C. 1915(e)(2)(B)(i) [formerly 28 U.S.C. 1915(d)], as "frivolous"). 2 2 1 failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990). The McCormick Correctional Institution is a group of buildings or a facility. Inanimate objects ) such as buildings, facilities, and grounds ) do not act under color of state law. Hence, the McCormick Correctional Institution is not a "person" subject to suit under 42 U.S.C. 1983. See Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin Prison not "person[s]" subject to suit under 42 U.S.C. 1983); 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."); Brooks v. Pembroke City Jail, 722 F. Supp. 1294, 1301 (E.D.N.C. 1989) ("Claims under 1983 are directed at `persons' and the jail is not a person amenable to suit."); and Wright v. El Paso County Jail, 642 F.2d 134, 136 n. 3 (5th Cir. 1981). Recommendation Accordingly, it is recommended that the District Court dismiss the above-captioned case without prejudice and without issuance and service of process. See Denton v. Hernandez; Neitzke v. Williams; Brown v. Briscoe, 998 F.2d 201, 202-204 (4th Cir. 1993); 28 U.S.C. 1915(e)(2)(B) [essentially a redesignation of "old" 1915(d)]; and 28 U.S.C. 1915A [as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal]. The plaintiff's attention is directed to the Notice on the next page. March 19, 2009 Florence, South Carolina s/Thomas E. Rogers, III Thomas E. Rogers, III United States Magistrate Judge 3 Notice of Right to File Objections to Report and Recommendation The plaintiff is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503 Failure to timely file specific written objections to this Report and Recommendation will result in a 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985). 4

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