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Lisenby v. Thomas

United States District Court, D. South Carolina

August 11, 2014

Billy Lee Lisenby, Jr., # 200273, Plaintiff,
v.
Kela E. Thomas, Director; Larry Ray Patton, Jr., Director of Parole Board Support; The Parole Board, Defendants.

REPORT AND RECOMMENDATION (PARTIAL SUMMARY DISMISSAL)

KAYMANI D. WEST, Magistrate Judge.

This is a civil action filed pro se by a state prison inmate. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § § 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).

I. Background

Billy Lee Lisenby, Jr. ("Plaintiff") alleges that many of his federal constitutional rights and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 (covering discrimination by public entities), were violated by the alleged lack of consideration the South Carolina Parole Board (the "Parole Board") gave to his parole application in March 2014. ECF No. 1-1 at 2. He cites to 42 U.S.C. §§ 1981, 1983, 1985, 1986 and the ADA as the basis for his claims. ECF No. 1-1 at 1.[1] Plaintiff states that the parole hearing lasted only three minutes despite his having submitted extensive medical evidence and personal recommendations to the Parole Board, and that Defendants could not have adequately considered and applied the statutory criteria for parole consideration in his case. Id. at 2-4; see S.C. Code Ann. § 24-21-640 ("Circumstances warranting parole; search and seizure; criteria; reports of parolees; records subject to Freedom of Information Act."). Plaintiff also contends that the Parole Board violated its own policies by not having a mental-health assessment performed and considered. ECF No. 1-1 at 4. He further alleges that the reasons given for denying him parole violate his rights under the ADA and to due process under the Fourteenth Amendment because 1) there is nothing he can do to correct the circumstance that he has not successfully completed a community supervision program, and 2) most of the prison disciplinary violations the Parole Board held against him resulted from his well-documented mental health problems (bi-polar, explosive personality disorder). ECF No. 1-1 at 7-8. He sues two individual officials of the South Carolina Department of Probation, Parole and Pardon Services ("SCDPPPS") and "the Parole Board, " and asks for damages, and injunctive and declaratory relief. Id. at 10-12.

II. Standard of Review

Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § § 1915, 1915A, and the Prison Litigation Reform Act of 1996, and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).

Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this 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. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Even under this less stringent standard, the Complaint filed in this case is subject to partial summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B).

III. Discussion

A. The Parole Board

1. § 1983 Claim

Plaintiff fails to state any plausible claims against Defendant "the Parole Board, " and, accordingly, the Complaint should be partially summarily dismissed insofar as it seeks to hold this Defendant liable for any of the alleged constitutional or federal statutory violations which Plaintiff contends occurred in connection with his parole hearing. First, to state a plausible claim for relief under 42 U.S.C. § 1983, [2] an aggrieved party must sufficiently allege that he or she was injured by "the deprivation of any [of his or her] rights, privileges, or immunities secured by the [United States] Constitution and laws" by a "person" acting "under color of state law." See 42 U.S.C. § 1983; see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1230 (2002). It is well settled that only "persons" may act under color of state law; therefore, a defendant in a § 1983 action must qualify as a "person." For example, several courts have held that inanimate objects such as buildings, facilities, and grounds do not act under color of state law. See 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."). Additionally, use of the term "staff" or the equivalent as a name for alleged defendants, without the naming of specific staff members, is not adequate to state a claim against a "person" as required in § 1983 actions. See Barnes v. Baskerville Corr. Cen. Med. Staff, No. 3:07CV195, 2008 WL 2564779 (E.D. Va. June 25, 2008). Plaintiff's use of the collective term "the Parole Board" to name a § 1983 defendant is the equivalent of the use of collective terminology such as "staff, " which has been found insufficient to name a person. Id. As a result, Plaintiff fails to state a plausible § 1983 claim against Defendant the Parole Board.

2. Other Civil Rights Claims

Plaintiff has not stated any plausible §1981 or § 1985 claims against the Parole Board because there are no allegations that any of the alleged constitutional violations in Plaintiff's parole proceedings were the result of racial-, gender-, or national-origin-based discrimination. See Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995) ("Under section 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.") (emphasis added, citations omitted); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 69 (6th Cir. 1985) (§ 1981) ("It is well settled that an action based upon 42 U.S.C. Section 1981 requires the plaintiff to demonstrate that the defendants intentionally discriminated against her on the basis of race."); see also Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 388-89 (1982) (§ 1981 requires allegations and proof of racial discrimination). Additionally, because Plaintiff has stated no plausible § 1985 claim in his Complaint, he cannot state a plausible § 1986 claim because § 1986 is derivative of § 1985. The statute itself ...


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