LaSure v. Scaturo et al

Filing 19

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and DISMISSING this action without prejudice and without issuance and service of process. Signed by Honorable R Bryan Harwell on 12/19/2016.(cwhi, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Alfred W. LaSure, a/k/a Alfred William LaSure,

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Plaintiff,
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v.
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Holly Scaturo; Kimberly Poholchuk, B.M.C.
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Program Director; Cynthia Helff, B.M.C.; Dr. Kelly)
Gothard; Dr. Gordon Brown, Psychologist; Dr.
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Rozanna Trass, Psychologist; Dr. Amy Swan,
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Psychologist; Marie Gehle, Evaluator; Dr. Donna )
Schwartz-Watts, Psychologist; Capt. Frank Abney, )
P.S.O. Supervisor; Galen Sanders, Chief Nursing )
Administrator; Harold Alexander, R.N.; Charlene )
Hickman, R.N.; Dr. John McGill, Director of
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Department of Mental Health; and Allen Wilson, )
Attorney General,
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Defendants.
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__________________________________________)

Civil Action No.: 9:16-cv-02317-RBH

ORDER

Plaintiff Alfred William LaSure, a state civilly committed person proceeding pro se, has filed
this action pursuant to 42 U.S.C. § 1983 against the above-captioned Defendants. See ECF No. 1. The
matter is before the Court for review of the Report and Recommendation (“R & R”) of United States
Magistrate Judge Bristow Marchant, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02 for the District of South Carolina.1 See R & R, ECF No. 15. The Magistrate Judge
recommends that the Court summarily dismiss Plaintiff’s complaint without prejudice and without
issuance and service of process. R & R at 7. Plaintiff has filed timely objections to the R & R. See

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The Magistrate Judge reviewed Plaintiff’s complaint pursuant to the screening provisions of 28 U.S.C.
§§ 1915(e)(2) and 1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). But see Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) (“Principles requiring generous construction of pro se complaints are not, however, without limits.
Gordon directs district courts to construe pro se complaints liberally. It does not require those courts to conjure up
questions never squarely presented to them.”).

Pl.’s Objs., ECF No. 17.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
Discussion2
Plaintiff is a civilly committed person in the South Carolina Department of Mental Health
pursuant to the South Carolina Sexually Violent Predator Act, S.C. Code Ann. §§ 44-48-10 through 170. Plaintiff has filed a complaint against fifteen defendants, purporting to sue them under 42 U.S.C.

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The R & R contains a full summary of the procedural and factual history of this case, as well as the
applicable legal standards.

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§ 1983. See ECF No. 1. The Magistrate Judge recommends summarily dismissing Plaintiff’s complaint
for the following reasons: (1) Plaintiff fails to request any relief in his complaint; (2) to the extent
Plaintiff has requested to be released or has challenged his civil commitment, the Supreme Court’s
holding in Heck v. Humphrey, 512 U.S. 477 (1994), bars such claims; (3) the complaint fails to state
a plausible, nonfrivolous § 1983 claim; (4) Plaintiff cannot maintain a § 1983 claim based on
supervisory liability; and (5) Plaintiff fails to allege sufficient facts to state a constitutional or other
federal claim against Defendant Swan. R & R at 4-7.
Plaintiff lodges two main objections to the R & R.3 First, he claims Defendant “Swan is nothing
more than a hired gun” for the Sexually Violent Predator Treatment Program administered by the South
Carolina Department of Mental Health. Pl.’s Objs. at 1. Plaintiff further asserts such “indefinite long
term care and treatment . . . is essentially . . . equivalent to [a] criminal’s life sentence and treatment
is . . . punitive action as seen with the 33 pages within Case No # 9:15-cv-1357-RBH-BM.” Id. Based
on this statement, Plaintiff appears to be referring to a complaint (which had thirty-three pages of
attached exhibits) in another case that he previously filed in this Court. See LaSure v. SC Mental Health

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In footnote two of the R & R, the Magistrate Judge noted that “Plaintiff has not named the ‘Behavioral
Management Committee’ as a defendant, but even if he had, such a group, if the individuals are not identified, is
subject to dismissal as a party defendant because groups of people are not amenable to suit under § 1983.” R & R
at 3 n.2. In reaching this conclusion, the Magistrate Judge cited Harden v. Green, 27 F. App’x 173 (4th Cir. 2001),
wherein the Fourth Circuit held that “[t]he medical department of a prison may not be sued, because it is not a person
within the meaning of § 1983.” 27 F. App’x at 178 (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71
(1989), which addressed Eleventh Amendment immunity and held “that neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983”).
Plaintiff appears to address footnote two of the R & R in his objections, remarking that “to bring the
confusion down,” he is referring “to the individuals that make up the” Behavioral Management Committee. Pl.’s
Objs. at 1. Additionally, Plaintiff cites two cases— Hafer v. Melo, 502 U.S. 21 (1991), and Doe v. Lawrence
Livermore National Laboratory, 131 F.3d 836 (9th Cir. 1997)— that address Eleventh Amendment immunity as it
pertains to state officers sued in their official capacity versus their individual capacity. Pl.’s Objs. at 2. As explained
below, Plaintiff’s claims against the named Defendants fail for reasons other than Eleventh Amendment immunity.

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et al., No. 9:15-cv-01357-RBH (D.S.C.).4 In that case, Plaintiff presented a similar argument
challenging the constitutionality of the Sexually Violent Predator Act (“SVPA”) and its allegedly
punitive nature, which the Court rejected as follows:
[C]ourts have consistently upheld the constitutionality of the SVPA
and determined it is a non-punitive form of civil commitment. See,
e.g., Seling v. Young, 531 U.S. 250 (2001); Kansas v. Hendricks, 521
U.S. 346 (1997); In re Matthews, 345 S.C. 638, 648-51, 550 S.E.2d
311, 315-17 (2001) (citing the United States Supreme Court’s
decision in Hendricks as “controlling” and concluding the SVPA is
civil rather than criminal and that confinement under the SVPA is
non-punitive), cert. denied, 535 U.S. 1062 (2002); In re Allen, 351
S.C. 153, 568 S.E.2d 354 (2002); In re Treatment & Care of
Luckabaugh, 351 S.C. 122, 568 S.E.2d 338 (2002). See also Michau
v. Charleston Cty., 434 F.3d 725, 727 (4th Cir. 2006) (“Michau is
presently being detained under the SVPA, which creates a system of
civil, not criminal, detention.” (emphasis added)).
No. 9:15-cv-01357-RBH, at ECF No. 95 p. 13. For the same reason, the Court rejects Plaintiff’s
argument and overrules his objection.
Second, Plaintiff addresses the Magistrate Judge’s initial finding that Plaintiff has failed to
request any relief in his complaint. See R & R at 4. Plaintiff states, “Relief Plaintiff would seek is
declaratory as well [as] injunctive relief over the mental stress, mental anguish, lack of therapeutic
treatment, and a monitory [sic] sum in the order of $2,735,000.00 from each defendant.” Pl.’s Objs.
at 2. Plaintiff further states he “wish[es] to request more time as to make his amended pleading.” Id.
Plaintiff has not, however, challenged the Magistrate Judge’s recommendations regarding the
additional, independent reasons why his complaint must be dismissed. See Diamond, 416 F.3d at 315
(stating that absent specific objections, a district court need only review the magistrate judge’s R & R

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The Court granted summary judgment for all defendants and dismissed the case with prejudice. See No.
9:15-cv-01357-RBH, at ECF No. 95.

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for clear error). As the Magistrate Judge reported, (a) Heck bars Plaintiff’s challenge to his civil
commitment; (b) Plaintiff’s complaint fails to state a plausible, nonfrivolous § 1983 claim; and (c)
Plaintiff cannot maintain a § 1983 claim based on supervisory liability. The Court finds these three
reasons are independent grounds for summary dismissal of Plaintiff’s complaint.5
Conclusion
The Court has thoroughly reviewed the entire record, including Plaintiff’s complaint, the R &
R, and Plaintiff’s objections. See ECF Nos. 1, 15, & 17. For the reasons stated in this Order and in the
R & R, the Court overrules Plaintiff’s objections, adopts and incorporates the R & R [ECF No. 15] by
reference, and DISMISSES this action without prejudice and without issuance and service of process.
IT IS SO ORDERED.

Florence, South Carolina
December 19, 2016

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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Thus, to the extent Plaintiff seeks leave to amend his complaint to specify his requested relief, such
amendment would be futile. See Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 379 (4th
Cir. 2012) (“[A] request to amend should only be denied if one of three facts is present: the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party, or am endm ent would be
futile.” (internal quotation marks omitted) (emphasis added)).

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