United States District Court, D. South Carolina, Greenville Division
June 3, 2014
Samuel Shorter, III, Plaintiff,
Kershaw Correctional Institution, Officer Russell, Michelle Ussery, South Carolina Department of Corrections, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, Magistrate Judge.
Plaintiff is an inmate at the Kershaw Correctional Institution. This civil rights action arises out of an alleged inmate attack upon Plaintiff and also concerns medical care provided to Plaintiff. In a separately-filed order, the undersigned is authorizing service of process upon Defendant Officer Russell and Defendant Michelle Ussery. DISCUSSION
Under established local procedure in this judicial district, a careful review 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. Plaintiff is a pro se litigant, and thus his pleadings are accorded liberal construction. See Erickson v. Pardus, 551 U.S. 89, 90-95 (2007)( per curiam ). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). Even under this less stringent standard, the Complaint is subject to partial summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
Defendant Kershaw Correctional Institution is subject to summary dismissal because it is not a "person" subject to suit pursuant to 42 U.S.C. § 1983. The Kershaw 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 Kershaw Correctional Institution is not a "person" subject to suit under 42 U.S.C. § 1983. See Jones v. Lexington Cnty. Det. Ctr., 586 F.Supp.2d 444, 451 (D.S.C. 2008) (collecting cases). Therefore, the Kershaw Correctional Institution is entitled to summary dismissal as a party defendant.
The South Carolina Department of Corrections is immune from suit under the Eleventh Amendment, which divests this court of jurisdiction to entertain a suit brought against the State of South Carolina or its integral parts, such as a state agency or department. See, e.g., Fed. Maritime Comm'n v. South Carolina State Ports Auth., 535 U.S. 743 (2002); and Belcher v. South Carolina Bd. of Corr., 460 F.Supp. 805, 808-09 (D.S.C. 1978).
It is recommended that the district court summarily dismiss Kershaw Correctional Institution and South Carolina Department of Corrections without prejudice and without service of process.