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Ward v. Blackwell

United States District Court, D. South Carolina

April 6, 2017

Matthew J. Ward, #330240, Plaintiff,
v.
James Blackwell, Asst. Warden, Tamara Ravenell, Classification, Jack Kicinski, Officer, Defendants.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         This is 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).

         BACKGROUND

         This 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.

         Plaintiff was taken to medical.

         Plaintiff 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).

         Plaintiff 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 sponte.

         STANDARD OF REVIEW

         Under 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).

         This 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).

         This 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 advocate.).

         DISCUSSION

         Plaintiff 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).

         Under § 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 ...


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