United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III Florence, South Carolina United States
is a civil action filed by Eric Davis
(“Plaintiff”), a state prisoner proceeding
pro se, alleging violations of his constitutional
rights. Pursuant to the provisions of 28 U.S.C. §
636(b)(1), and District of South Carolina Local Civil Rule
73.02(B)(2)(e), the undersigned is authorized to review such
complaints for relief and submit findings and recommendations
to the district judge. 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).
established local procedure in this judicial district, a
careful review has been made of the 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) (en banc);
Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
Complaint has been filed pursuant to 28 U.S.C. § 1915,
which permits an indigent litigant to commence an action in
federal court without prepaying the administrative costs of
proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss the 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). A finding of frivolousness can be made where
the complaint “lacks an arguable basis either in law or
in fact.” Denton, 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte. See
Neitzke, 490 U.S. at 327.
court is required to liberally construe pro se
complaints. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Such pro se complaints are held to a less
stringent standard than those drafted by attorneys.
Id.; Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978). Even under this less stringent standard,
however, the pro se complaint is subject to summary
dismissal. The mandated liberal construction afforded to
pro se pleadings means that if the court can
reasonably read the pleadings to state a valid claim on which
plaintiff could prevail, it should do so, but a district
court may not rewrite a complaint to include claims that were
never presented, construct the Plaintiff's legal
arguments for him, or conjure up questions never squarely
presented to the court. Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985); Small v.
Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v.
Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement
of liberal construction does not mean that the 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, 390-91 (4th Cir.1990) (“The ‘special
judicial solicitude' with which a district court should
view such pro se complaints does not transform the court into
has substantially complied with two prior orders of the court
and this case is now in proper form. Under a liberal
construction, the court considers both complaint forms filed
as the Complaint. Plaintiff alleges Eighth and Fourteenth
Amendment right violations under 42 U.S.C. § 1983. As to
exhaustion of administrative remedies, Plaintiff alleges that
he filed a grievance and requests and did not receive a
response. Plaintiff names Thomas Elemo, John
Wiggins, J. Wutton, and Lester Smith as Defendants in their
official capacity only. Plaintiff alleges that in front of
Elemo on March 22, 2015, an uncuffed inmate threatened to
beat Plaintiff if Elemo placed Plaintiff in his cell. Then
Elemo placed Plaintiff into the cell without removing
Plaintiff's handcuffs. The inmate beat Plaintiff
repeatedly while Elemo watched until Plaintiff had a seizure
and was transported to the emergency room. Plaintiff requests
monetary damages. Plaintiff provides sufficient factual
allegations to withstand summary dismissal against Defendant
Plaintiff fails to state a claim against Wiggins, Wutton, and
Smith, and these Defendants are subject to summary dismissal.
brings this action pursuant to 42 U.S.C. § 1983. Section
1983 “ is not itself a source of substantive rights,
but merely provides a method for vindicating federal rights
elsewhere conferred.” Albright v. Oliver, 510
U.S. 266, 271 (1994) (internal quotation and citation
omitted). A legal action under § 1983 allows “a
party who has been deprived of a federal right under the
color of state law to seek relief.” City of
Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687, 707 (1999).
§ 1983, a plaintiff must establish two essential
elements: (1) that a right secured by the Constitution or
laws of the United States was violated, and (2) that the
alleged violation “was committed by a person acting
under the color of state law.” West v. Atkins,
487 U.S. 42, 48 (1988).
order to assert a plausible § 1983 claim against any
particular state actor, a “causal connection”
must exist between the conduct alleged by the plaintiff and
the particular defendant named in the suit. See Kentucky
v. Graham, 473 U.S.159, 166 (1985); Rizzo v.
Good, 423 U.S. 362, 371-72 (1976) (a § 1983
plaintiff must show that he suffered a specific injury
resulting from a specific defendant's specific conduct
and must show an affirmative link between the injury and that
conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th
Cir.1977) (for an individual to be liable under § 1983,
the Plaintiff must show that the defendant named acted
personally in the deprivation of the Plaintiff's rights).
are no factual allegations as to Lester Smith in the
Plaintiff's Complaint. The extent of the allegations
against Wutton is “Wutton was in SMU this very day of
the attack.” ECF No. 1. Plaintiff does not allege any
conduct or any connection of Elemo to Wutton or Smith. Even
though a pro se Plaintiff's pleadings are to be
liberally construed, a pro se complaint must still
contain sufficient facts “to raise a right to relief
above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see
also Slade v. Hampton Roads Reg'l Jail, 407 F.3d
243, 252 (4th Cir. 2005). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
of the Federal Rules of Civil Procedure “demands more
than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Id. When the Plaintiff's
Complaint lacks such ...