Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

King v. McPherson

United States District Court, D. South Carolina, Rock Hill Division

December 30, 2015

Curtis L. King, Plaintiff,
Official McPherson, Lee Corr Inst; Sgt Boatwright, Lee Corr Inst; DHO Patterson, Lee Corr Inst; Warden Reynolds, Lee Corr Inst; Shake Down Team at Lee Corr Inst/ Turbeville; Capt. Pack, Turbeville Corr Inst; Lt. Shannon, Turbeville Corr Inst; Officer McElveen, Turbeville Corr Inst; Officer Barnes, Turbeville Corr Inst; DHO Brown, Turbeville Corr Inst; Lt. Siebel, Broad River Corr Inst; Capt. Washington, Broad River Corr Inst; W. Christopher Swett, appointed counsel; Sgt. Carlton Ashe Sgt. Debra McFadden Defendants.



Plaintiff Curtis L. King, currently incarcerated at Evans Correctional Institution in Bennettsville, South Carolina and proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 against several individuals alleging civil rights violations, including excessive use of force, cruel and unusual punishment, unlawful search, and a violation of his expectation of privacy.

This matter is before the Court for review of the Report and Recommendation of Magistrate Judge Paige J. Gossett filed on November 5, 2015. [ECF #42]. This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(e).The Magistrate Judge recommended that the case be summarily dismissed as to four of the named Defendants: Warden Reynolds, DHO Patterson, DHO Brown, and W. Christopher Swett. On November 18, 2015, Plaintiff filed Objections to the Magistrate Judge’s Report and Recommendation. [ECF #47].


Plaintiff filed his original Complaint on June 11, 2015, against several prison officials alleging violations of his constitutional rights. [ECF #1]. On June 18, 2015, he filed an Amended Complaint naming Christopher Swett as an additional Defendant. [ECF #5]. The Complaint was then appended to the Amended Complaint as an attachment. [ECF #5-1]. According to the allegations in Plaintiff’s Amended Complaint, Lt. Seibel used excessive force in violation of the Eighth Amendment by discharging chemical munitions on September 22, 2010. [ECF #5-1, p. 3]. Similarly, Plaintiff alleges Lt. Seibel, Sgt. Boatwright and Capt. Pack used excessive force in violation of the Eighth Amendment by spraying Plaintiff with chemical munitions on March 25, 2013. [ECF #5-1, p. 5].[1] He further alleges Sgt. McFadden violated his constitutional rights by entering his cell unannounced and invading his privacy, resulting in Plaintiff’s exhibitionism charge. [ECF #5-1, p. 4].

Plaintiff’s Amended Complaint also includes allegations that DHO Brown and DHO Patterson denied him due process during three disciplinary hearings for exhibitionism, refusal to obey orders, and possession of an unauthorized drug. [ECF #5-1, pp. 3, 4, 6, 7]. Plaintiff alleges that Officer McElveen, Capt. Pack, and Officer Barnes denied him access to food for refusing to wear a pink jumpsuit. [ECF #5-1, p. 7]. Plaintiff alleges Official McPherson did not provide him a winter jacket “fit for cold weather” in violation of the Eighth Amendment. [ECF #5-1, p. 7]. Finally, he alleges Capt. Washington and the “shakedown team” violated his constitutional rights by subjecting him to repetitive anal cavity searches. [ECF #5-1, p. 8]. In the Complaint and Amended Complaint, Plaintiff did not make any factual allegations against Defendant Reynolds. However, in his objections, Plaintiff did allege Warden Reynolds had personal involvement and exhibited deliberate indifference because he chose to “warrant” the shake down team incident and in his response to complaints regarding the anal cavity searches. [ECF #47, p. 2]. As correctly mentioned by the Magistrate Judge, while Plaintiff seeks both monetary damages and release from confinement, the latter relief is not available under § 1983. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

Standard of Review

The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the report and recommendation to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The district court is obligated to conduct a de novo review of every portion of the Magistrate Judge’s report to which objections have been filed. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). 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’s proposed findings and recommendations.” Id.

Plaintiff filed his Amended Complaint in forma pauperis pursuant to 28 U.S.C. § 1915. Under this statute, a district court may dismiss a case upon a finding that the action “fails to state a claim on which relief may be granted, ” “is frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In other words, a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319, 327 (1989). However, a pro se complaint is to be liberally construed and held to less stringent standards than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94, (2007). This generous construction is not without limits, and the Court is not required to construct claims from sentence fragments. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


A. Summary Dismissal of W. Christopher Swett

According to Plaintiff’s Amended Complaint, W. Christopher Swett (“Defendant Swett”) was appointed as his legal counsel on September 3, 2013. [ECF #5, p. 1]. In Plaintiff’s Amended Complaint, he alleged Defendant Swett engaged in misconduct that interfered with Plaintiff’s right of access to the courts under the First Amendment and resulted in a violation of due process under the Fourteenth Amendment. [ECF #5, p. 2]. The Magistrate Judge recommended summary dismissal of Defendant Swett because he is not a state actor amenable to suit under § 1983. Plaintiff objects to the summary dismissal of Defendant Swett by alleging Defendant Swett’s actions constituted cruel and unusual punishment, deliberate indifference, and hindered Plaintiff’s access to the courts, thereby violating the First, Eighth, and Fourteenth Amendments. [ECF #47, p. 1]. Plaintiff did not object to the Magistrate Judge’s finding that Defendant Sweet is not a state actor subject to suit under § 1983.

In order for Plaintiff to state a plausible claim under § 1983 against Defendant Swett, he must demonstrate that Defendant Swett acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The Fourth Circuit has previously determined that court-appointed attorneys are entitled to dismissal of § 1983 actions brought against them for want of state action. Hall v. Quillen, 631 F.2d 1154, 1156, n.2 (4th Cir. 1980); see also Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (holding that a public defender does not act under color of state law when performing traditional functions as counsel in a criminal proceeding). In Plaintiff’s objections, he does not refute the Magistrate Judge’s finding that Defendant Swett ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.