United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
MARY GORDON BAKER, Magistrate Judge.
Plaintiff Antrell Jermaine Fordham has filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner incarcerated at Lieber Correctional Institution in South Carolina and is proceeding pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1), and Local Rule 73.02(B)(2), the assigned Magistrate Judge is authorized to review the record and to submit findings and recommendations to the District Judge. Having carefully reviewed the record, the Magistrate Judge recommends that the Complaint be summarily dismissed, without prejudice, without issuance and service of process, for the following reasons:
Plaintiff is presently serving state sentences for multiple counts of bank robbery and escape. His projected release date is January 13, 2023. Plaintiff is suing three prison officials (in both their individual and official capacities) for monetary damages because he is displeased with the decision in his prison disciplinary case for charges of public masturbation, exhibitionism, and solicitation. Based on the witness testimony at the hearing, the disciplinary hearing officer (Officer Bachman) found Plaintiff not guilty of public masturbation and exhibitionism, but found him guilty of solicitation. Plaintiff brings this action under 42 U.S.C. § 1983, claiming that his due process rights were violated by the disciplinary proceeding and resulting placement in administrative segregation for 78 days. (DE# 1 at 3, ¶ IV "Statement of Claim").
Specifically, Plaintiff indicates that on May 22, 2015, he had an appointment to speak with the prison psychiatrist Dr. Anna Gomez. Afterwards, according to Plaintiff, Dr. Gomez wrote up an incident report about Plaintiff's behavior and "said something to [Assoc. Warden Fred B.] Thompson about [Plaintiff's] conversation" with her. Plaintiff received notice of charges for public masturbation, exhibitionism, and solicitation, and was placed in segregation. (DE# 1 at 3, "Statement of Claim"). According to Plaintiff, Dr. Gomez' incident report "did not contain solicitation." ( Id. ). Plaintiff contends that Major Thierry Nettles "took it upon himself to have a Disciplinary paper typed up on me without an incident report." ( Id. ).
Plaintiff filed a grievance on August 3, 2015, complaining that "he did not offer [Dr.] Ana Gomez no money in exchange for any favors." (DE# 1-1 at 1, attached copy of Grievance). The Warden responded in writing on August 7, 2015, explaining that "Dr. Gomez did not need to suggest the charge of 838 Soliciting Improper relationships on her incident report for Major Nettles to formally charge you with 838 and refer your case to a disciplinary hearing." ( Id. at 2). Plaintiff's administrative appeal of the grievance was therefore denied.
In his Complaint, Plaintiff continues to argue that Major Nettles "violated my due process right by putting a charge on me I was not accused of doing without a (sic) incident report violating policy OP-22.14." ( Id. at 4). Plaintiff acknowledges that, based on the testimony at the subsequent disciplinary hearing on June 18, 2015, Officer Bachman found Plaintiff guilty of the solicitation charge. ( Id. ). Plaintiff complains that Defendant Bachman "took 20 days canteen from me for the bogus solicitation charge." ( Id. ). Plaintiff also complains that Major Thompson "violated my due process rights by placing me in segregation" for 78 days, from May 26, 2015 to August 11, 2015. ( Id. ). Plaintiff seeks only monetary relief from the three prison officials and does not seek any injunctive or prospective relief.
II. Relevant Law
A. Standard of Review
Under established local procedure in this judicial district, the Magistrate Judge has carefully reviewed this pro se prisoner complaint pursuant to 28 U.S.C. § 1915 and in light of the following precedents: Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The Prison Litigation Reform Act ("PLRA") permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action is "frivolous or malicious, " "fails to state a claim on which relief may be granted, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Under 28 U.S.C. § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke, 490 U.S. at 326. "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Id.
With respect to a failure to state a claim, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke, 490 U.S. at 326. The "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.2003). However, "[t]he special judicial solicitude' with which a district court should view... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir.2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore., 901 F.2d 387, 391 (4th Cir.1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se ...