Cunningham v. Drew et al

Filing 17

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant as it relates to Plaintiffs original complaint. Signed by Honorable Cameron McGowan Currie on 10/26/2012.(cwhi, ) Modified on 10/26/2012 to correct docket text (cwhi, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Eugene J. Cunningham,
Plaintiff,
v.
Darlene Drew, Warden, FCI; Inmate Work
Committee, a/k/a Inmate Job Quoatas [sic]
Assignment memebers [sic] – FCI
Bennettsville; T. Whitehead, Acting (CMC)
Case Manager Coordinator, FCI
Bennettsville; C. Harden, Case Manager,
FCI Bennettsville; M. Holland, Case
Manager, FCI Bennettsville; T. Smalls,
Principal, FCI Bennettsville; G. Del Rel,
Captain, FCI Bennettsville; W. Kinnion,
Food Service Administrator, FCI
Bennettsville,
Defendants.
___________________________________

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C/A NO. 9:12-2596-CMC-BM

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff seeks monetary damages for alleged violations of equal protection and due process.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (“Report”). On September 28, 2012, the Magistrate Judge issued
a Report recommending that this matter be dismissed without prejudice and without issuance and
service of process. The Magistrate Judge advised Plaintiff of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so. Plaintiff has filed

no objections to the Report, but instead has filed an amended complaint, seeking to cure the
deficiency outlined by the Magistrate Judge in the Report.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in 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.”) (citation omitted).
Plaintiff’s Amended Complaint lists two Defendants:

Darlene Drew, Warden FCI

Bennettsville; and G. Del Rel, Captain FCI Bennettsville. Accordingly, as the Amended Complaint
contains allegations only as to these two Defendants, the Clerk is directed to terminate all other
Defendants, and they are dismissed without prejudice.
STANDARD
Under established local procedure and in light of certain legal precedents, a careful review
has been made of the pro se amended complaint pursuant to the procedural provisions of 28 U.S.C.
§ 1915, 28 U.S.C. § 1915A, and the Prison Litigation Reform Act. See also Denton v. Hernandez,
504 U.S. 25 (1992); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of

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Corr., 64 F.3d 951 (4th Cir. 1995) (en banc). Morever, because Plaintiff is a pro se litigant, 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).
Upon initial review, Plaintiff’s allegations are assumed to be true. Fine v. City of New York,
529 F.2d 70, 74 (2nd Cir. 1975). Even with this assumption, Plaintiff must plead factual content that
allows the court to draw the reasonable inference that the named defendant is plausibly liable, not
merely possibly liable. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Even when considered under this
less stringent standard, however, Plaintiff’s amended complaint is subject to summary dismissal.
The requirement of liberal construction does not mean that the court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently cognizable in a federal district court.
Weller v. Dept. of Social Servs., 901 F.2d 387 (4th Cir. 1990).
This court must dismiss any action filed by a prisoner if the court determines the action (1)
“is frivolous” or (2) “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2);
see 28 U.S.C. § 1915A. The first standard includes claims based upon “an indisputably meritless
legal theory” or claims where the “factual contentions are clearly baseless.” Neitzke v. Williams,
490 U.S. 319, 327 (1989).
The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P.
12(b)(6).

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(citation omitted). In considering a motion to dismiss for failure to state a claim, a plaintiff’s

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well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable
to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993); see also Martin, 980
F.2d at 952. This principle only applies to factual allegations, however, and “a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This approach
recognizes that “naked assertions” of wrongdoing necessitate some “factual enhancement” within
the complaint to cross “the line between possibility and plausibility of entitlement to relief.”
Twombly, 550 U.S. at 557 (internal quotation marks omitted). Determining whether a complaint
states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will
“be a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is
entitled to relief,’” as required by Rule 8. Iqbal, 556 U.S. at 679 (alteration in original) (citation
omitted) (quoting Fed.R.Civ.P. 8(a)(2)). The Court noted that even though Rule 8 “marks a notable
and generous departure from the hyper-technical, codepleading regime of a prior era, . . . it does not
unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id.
The Federal Rules of Civil Procedure “require[ ] only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Plaintiff cannot satisfy this standard with a complaint containing only “labels and conclusions” or
a “formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp., 550 U.S. at 555

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(citations omitted). Instead, Plaintiff must allege facts sufficient “to raise a right to relief above the
speculative level,” id. (citation omitted), stating a claim that is “plausible on its face,” id. at 570,
rather than merely “conceivable.” Id. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 566 U.S. at 663 (citing Bell Atl. Corp., 550 U.S. at 556). Therefore,
in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must
“allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) ( citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while
the court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978), it does not act as the inmate’s advocate, sua sponte developing statutory and constitutional
claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d
241, 243 (4th Cir.1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir.1985).
As noted by the Magistrate Judge, actions by the federal government which classify
individuals in a discriminatory manner could violate the due process right embodied in the Fifth
Amendment. Plaintiff “must first demonstrate that he has been treated differently from others with
whom he is similarly situated and that the unequal treatment was the result of intentional or
purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If Plaintiff
makes this showing, “the court proceeds to determine whether the disparity in treatment can be
justified under the requisite level of scrutiny.” Id.

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Generally, the question of whether the equal protection clause has been violated arises when
a state or federal action grants a particular class of individuals the right to engage in an activity yet
denies other individuals the same right. Additionally, the United States Supreme Court has
recognized that it is possible to make an equal protection claim if one is singled out as a individual
for “arbitrary and irrational treatment,” with no rational basis for such disparate treatment, even if
one is not being discriminated against as a member of a certain group. See Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000); Willis v. Town of Marshall, N.C., 426 F.3d 251, 263 (4th Cir.
2005). In such a “class of one” equal protection claim, the plaintiff must allege facts to demonstrate
that the defendant intentionally treated the plaintiff differently from other similarly situated persons,
without any rational basis for the difference. However, when reviewing an equal protection claim
in the prison context, courts must adjust the level of scrutiny to ensure that prison officials are
afforded the necessary discretion to operate their facilities in a safe and secure manner. In such
instances, a prisoner claiming an equal protection violation must allege facts demonstrating the
above and that the disparate treatment is not “reasonably related to any legitimate penological
interest.” Veney v. Wyche, 293 F.3d 726, 730-32 (4th Cir. 2002).
DISCUSSION
Plaintiff contends that Defendants violated his right to equal protection by denying him the
“same jobs and privileges as other inmates who are housed at Federal Correctional Institution,
Bennettsville, South Carolina.” Amd. Compl. at 1 (ECF No. 15, filed Oct. 19, 2012). Plaintiff
alleges that this is a violation of equal protection because Defendants have “implemented polic[ies]
and procedure[s] that allows Plaintiff[’s] custody [classification] to be treated as a maximum
security inmate that disallow[s] [the] same treatment as all other inmates who[se] security and

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custody is the same as plaintiff.” Id. at 4. Plaintiff contends “he should be afforded the same jobs
and privileges and programs as all other inmates who ha[ve] the same custody and [are] situated the
same as Plaintiff.” Id. See also id. at 5 (Defendants’ implementation of policies result in them
“treating Plaintiff different[ly] [than] the rest of the population that the same custody as Plaintiff.”).
Taking Plaintiff’s allegations as true, as the court must do at this juncture, it cannot be said
that Plaintiff has failed to state a claim in his amended complaint upon which relief can be granted.
He has narrowed and altered his allegations, and accordingly, Plaintiff’s claim requires additional
factual exposition from Defendants.
CONCLUSION
Therefore, after reviewing Plaintiff’s complaint, amended complaint, and the record of this
matter, the applicable law, and the Report and Recommendation of the Magistrate Judge, the court
agrees with the Report’s analysis of the complaint and adopts the Report as it relates to Plaintiff’s
original complaint. However, in light of Plaintiff’s amended complaint, the court directs that this
matter be served on Defendants Drew and Rel. This matter is returned to the Magistrate Judge for
further proceedings consistent with this order.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
October 26, 2012

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