United States District Court, D. South Carolina, Anderson/Greenwood Division
Vincent L. Neumon, Sr., Plaintiff,
Warden Larry Cartledge, South Carolina Department of Corrections, et al., Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on a motion to remand filed by Plaintiff. [Doc. 23.] Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and to submit findings and recommendations to the District Court.
On or about May 14, 2014, Plaintiff, proceeding pro se, filed this action against Defendants in the Court of Common Pleas for Greenville County, South Carolina. [Doc. 1-1 at 3-9.] On May 27, 2014, Defendants removed the action to this Court, alleging that Plaintiff was asserting federal constitutional claims under 42 U.S.C. § 1983, specifically Eighth Amendment violations under the United States Constitution. [Doc. 1.]
On June 4, 2014, Plaintiff filed a motion to amend his Complaint and to remand the matter back to state court, contending he did not want to bring federal constitutional claims in his Complaint, and that the Court of Common Pleas was the proper venue for his Amended Complaint. [Docs. 22, 23.] The Court ordered Defendants to respond to the motion to remand [Doc. 24], which they did on June 16, 2014 [Doc. 26]. The Court granted Plaintiff's motion to amend on June 18, 2014 [Doc. 28]. In Defendants' response, they "concede that Plaintiff's Amended Complaint appears to allege only causes of action under state law" but request that all federal causes of action be dismissed with prejudice so Plaintiff would be barred from resurrecting these claims in state court. [Doc. 26.] Defendants also request that the Court order Plaintiff to pay their filing fee. [ Id. ]
Plaintiff alleges he is entitled to relief against the Defendants for violating his rights against cruel and unusual punishment resulting in pain, suffering, physical injury and emotional distress. [Doc. 22 at 3-7.] Specifically, Plaintiff alleges Defendants Brinkley and Church used excessive and unnecessary force against him by spraying him with a chemical agent although Plaintiff was not violating prison rules and while handcuffed, in leg irons, and on his knees. [ Id. at ¶¶ 53-54.] Plaintiff alleges Defendants Miller, Arrowood, Brown, Creel and Anderson acted in concert with Defendants Brinkley and Church in the excessive and unnecessary force used against Plaintiff. [ Id. at ¶¶ 55-59.] Finally, Plaintiff alleges Defendants Mauney and Cartledge conspired "in the gross negligence of confining the Plaintiff in continuous administrative segregation with no new grounds to validate confinement" and are ultimately responsible for the conduct of the corrections officers and/or the operations of the Perry Correctional Institution. [ Id. at ¶¶ 60-61.]
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
Section 1983 provides a private cause of action for plaintiffs alleging constitutional violations by persons acting under color of state law. Section 1983 provides, in relevant part,
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant "deprived [him] of a right secured by the Constitution and laws of the United States" and (2) that the defendant "deprived [him] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v. ...