United States District Court, D. South Carolina
Matthew J. Ward, #330240, Plaintiff,
James Blackwell, Asst. Warden, Tamara Ravenell, Classification, Jack Kicinski, Officer, Defendants.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
a civil action filed by a pro se state prisoner,
proceeding in forma pauperis. Pursuant to 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
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).
court has issued a prior order to Plaintiff, and
Plaintiff's case is now in proper form. Plaintiff filed
this action under 42 U.S.C. § 1983, alleging that
Defendants failed to protect him from violence at the hands
of another prisoner and were deliberately indifferent to a
serious and excessive risk to health and safety in violation
of the Eighth Amendment. (ECF No. 1 at 3). On December 19,
2015, Plaintiff's cellmate was arguing with him. (ECF No.
1 at 4). Plaintiff feared they would fight and notified
Defendant Kicinski that he wanted to be separated before a
physical altercation occurred. (ECF No. 1 at 4). Defendant
Kicinski said: “Go ahead on, fight, I won't stop
you.” Ten minutes later, Plaintiff's cellmate
became more aggressive and was in Plaintiff's face.
Plaintiff again told Defendant Kicinski of the problem; he
responded “if y'all gonna fight what y'all
waiting on.” Kicinski ignored Plaintiff and walked off.
Then, while Plaintiff was trying to get Kicinski's
attention a third time, Plaintiff was attacked by his cell
mate, resulting in a five inch cut to his head.
was taken to medical.
wrote Defendant Blackwell on January 4, 2016, and January 10,
2016, and wrote Defendant Ravenell on January 4, 5, and 10,
2016, about the situation and “got ignoring
responses.” (ECF No. 1 at 4). Plaintiff was found not
guilty for the disciplinary charge against him for fighting.
(ECF No. 1-1 at 4). Defendant requests “declaratory,
injunction and monetary relief.” (ECF No. 1 at 6).
attaches several grievances and there are no facts on the
face of the complaint that clearly show failure to exhaust.
However, a failure to exhaust available administrative
remedies is not a jurisdictional requirement and prisoners
are not required to plead exhaustion or bear the burden of
proof on exhaustion. Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008). At this juncture, a failure to
exhaust is not evident on the face of the pleadings and the
court is not required to address it further sua
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 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);
Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
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 frivolity can be made where the
complaint “lacks an arguable basis either in law or in
fact.” Denton v. Hernandez, 504 U.S. at 31.
Under § 1915(e)(2)(B), a claim based on a meritless
legal theory may be dismissed sua sponte.
Neitzke v. Williams, 490 U.S. 319 (1989).
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 may be 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 [court] should view such pro
se complaints does not transform the court into an
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