United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin, United States Magistrate Judge
matter is before the Court on a motion to dismiss filed by
Defendant Allen Wilson (“Wilson”); a motion to
dismiss filed by Plaintiff; and a motion to dismiss filed by
Defendant Amy Swan (“Swan”). [Docs. 21; 33; 35.]
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate
judge is authorized to review all pretrial matters in cases
filed under 42 U.S.C. § 1983 and to submit findings and
recommendations to the District Court.
filed this action on June 27, 2016, alleging violations of
his constitutional rights pursuant to 42 U.S.C. § 1983.
[Doc. 1.] On September 9, 2016, Wilson filed a motion to
dismiss. [Doc. 21.] On the same day, pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was
advised to respond to the motion and of the possible
consequences if he failed to adequately respond. [Doc. 23.]
Instead of responding to the motion to dismiss filed by
Wilson, on September 28, 2016, Plaintiff filed a motion to
dismiss. [Doc. 33.] On October 17, 2016, the Defendants who
had previously filed an Answer (the “Answer
Defendants”) filed a response to Plaintiff's motion
to dismiss. [Doc. 38.] On October 6, 2016, Swan filed a
motion to dismiss. [Doc. 35.] On October 7, 2016, pursuant to
Roseboro, Plaintiff was advised to respond to the
motion and reminded of the possible consequences if he failed
to adequately respond. [Doc. 36.] Plaintiff has not responded
to Swan's motion. The motions are ripe for review.
appears to have been civilly committed pursuant to the South
Carolina Sexually Violent Predator Act (“SVPA”),
SC Code Ann. §§ 44-48-10 through 44-48-170. [Doc.
1.] He alleges that the SVPTP is punitive in nature and not
treatment oriented. [Id. at 9.] He alleges he was
sent to the SVPTP on August 9, 2002, for treatment but that
he does not receive it. [Id. at 8.] He alleges the
conditions of confinement in the SVPTP are worse than
prisoner conditions. [Id. at 9.] He seems to allege
he receives one day per week of treatment for two hours, and
no one-on-one time with his case manager to discuss his
treatment. [Id. at 11.] He stays physically stressed
and has constant headaches, for which he only receives
Tylenol. [Id.] He seeks damages and injunctive
relief. [Id. at 12.]
Construction of Pro Se Complaint
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. 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 her.
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).
for a Cause of Action Under § 1983
action is filed pursuant to 42 U.S.C. § 1983, which
provides a private cause of action for constitutional
violations by persons acting under color of state law.
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) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)). Accordingly, a civil 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 provides, in relevant part,
Every 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 [the plaintiff] of a right secured
by the Constitution and laws of the United States” and
(2) that the defendant “deprived [the plaintiff] of
this constitutional right under color of [State] statute,
ordinance, regulation, custom, or usage.” Mentavlos
v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third
alteration in original) (citation and internal quotation
The under-color-of-state-law element, which is equivalent to
the “state action” requirement under the
Fourteenth Amendment, reflects judicial recognition of the
fact that most rights secured by the Constitution are
protected only against infringement by governments. This
fundamental limitation on the scope of constitutional
guarantees preserves an area of individual freedom by
limiting the reach of federal law and avoids imposing ...