United States District Court, D. South Carolina, Charleston Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION, AND
DISMISSING PLAINTIFF'S COMPLAINT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
proceeding pro se, brought this action pursuant to 42 U.S.C.
§ 1983 (Section 1983). The matter is before the Court
for review of the Report and Recommendation (Report) of the
United States Magistrate Judge suggesting Plaintiff's
Complaint be summarily dismissed, without prejudice, and
without issuance and service of process. The Report was made
in accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on September 27, 2017, ECF
No. 8, and the Clerk of Court entered Plaintiff's
objections to the Report on October 12, 2017, ECF No. 10. The
Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
preliminary matter, the Magistrate Judge recommended to the
extent Plaintiff sought to sue Defendant in his official
capacity, Eleventh Amendment sovereign immunity would bar
such suit, and Defendant should be dismissed as a party. In
his objections, Plaintiff indicates “[t]he Plaintiff is
suing Bryan Stirling in his individual capacity . . .
.” ECF No. 10 at 4. Given this clarification, Eleventh
Amendment immunity does not bar Plaintiff's lawsuit. As
analyzed below, however, Plaintiff's Complaint is still
subject to summary dismissal.
first objects the Magistrate Judge erred in suggesting
Plaintiff had no constitutional right to be housed at a
particular prison, and in recommending Plaintiff failed to
meet the pleading standard regarding his claim his planned
transfer to another prison was retaliatory. The Report
suggested Plaintiff's Complaint failed to state a claim
upon which relief could be granted, in part, because there is
no constitutional right to be housed in a particular prison,
and because Plaintiff failed to sufficiently plead the
planned transfer was retaliatory. According to Plaintiff, the
Magistrate Judge misconstrued the involuntary, out-of-state
transfer as a transfer within the South Carolina Department
of Corrections system. Further, Plaintiff claims the planned
transfer was in retaliation for his earlier actions.
objection fails for two reasons. First, the Magistrate Judge
nowhere alleged the planned transfer was within the South
Carolina Department of Corrections system. Thus, Plaintiff
mischaracterized the basis for the Magistrate Judge's
recommendation regarding the right to housing at a particular
prison. Accordingly, Plaintiff's objection to this
recommendation fails. Second, although Plaintiff alleges in
his Complaint and his objection the planned transfer was
retaliatory, the law is clear: a Plaintiff who provides only
conclusions without more has failed to state a plausible
claim for relief. Ashcroft v. Iqbal, 556 U.S. 662,
677-79 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-56 (2007). Plaintiff has only alleged the
planned transfer was retaliatory without providing a factual
basis to support this claim. Thus, Plaintiff has not made a
plausible case his transfer was retaliatory. For these
reasons, the Court will overrule Plaintiff's objection to
the Magistrate Judge's recommendations regarding the
right to be housed at a particular prison, and as to
Plaintiff's failure to meet the pleading standard on his
claim the planned transfer was retaliatory.
next objects the Magistrate Judge erred in suggesting
Defendant cannot be held personally liable for the actions of
his employees. The Magistrate Judge recommended a government
employee can be held liable under Section 1983 for only his
own actions. The employer cannot be held liable via
respondeat superior for the actions of employees he
supervises. On this basis, the Magistrate Judge suggested
Plaintiff's Complaint be summarily dismissed.
Court agrees with the Magistrate Judge. Respondeat superior
liability does not apply in actions under Section 1983.
Iqbal, 556 U.S. at 676. “Because vicarious
liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has
violated the Constitution.” Id. In his
Complaint, Plaintiff makes no direct allegations against
Defendant; rather, Plaintiff appears to hold Defendant liable
based on the actions of other South Carolina Department of
Corrections (SCDC) officials. As noted above, the law
precludes this respondeat superior liability. In his
Objections, Plaintiff claims Defendant directly ordered other
SCDC officials to violate policy regarding transfers. As a
preliminary matter, Plaintiff states this allegation as a
conclusion without providing any factual basis for the
assertion. Thus, the claim would be due to be dismissed for
failure to state a claim. Ashcroft, 556 U.S. at
677-79 (2009), Bell Atlantic Corp., 550 U.S. at
555-56. Even assuming Plaintiff stated a claim based on
Defendant's alleged direct orders to violate prison
policy, Section 1983 provides a remedy for violation of a
person's constitutional rights by a state actor. 42
U.S.C. § 1983. Violating prison policy is not a per se
constitutional violation, and thus is not a per se violation
of Section 1983. On this basis, the Court will overrule
Plaintiff's objection to the Magistrate Judge's
recommendation Defendant is not liable under Section 1983.
further argues the Magistrate Judge erred in suggesting
Defendant was not liable for denying Plaintiff's
grievances. The Magistrate Judge noted an official's
denial of an after-the-fact prisoner grievance is not a basis
for a Section 1983 claim, and thus Plaintiff's Complaint
failed to state a claim against Defendant for handling and
denial of Plaintiff's grievances. Plaintiff avers a
grievance is like an affidavit, which is binding when
appealed. Here, Plaintiff claims his grievances prove he
tried to resolve his issues via proper channels, he alleged
the planned transfer was retaliatory, and the planned
transfer was at the direction of Defendant.
Court agrees with the Magistrate Judge. As other Courts have
held, an official's response to a prisoner's
after-the-fact grievance does not provide a basis for a
Section 1983 claim. See, e.g., Brooks v.
Beard, 167 F. App'x 923, 925 (3rd Cir. 2006);
DePaola v. Ray, Civil Action No.: 7:12CV00139, 2013
WL 4451236 at *8, *30 (W.D. Va., July 22, 2013), adopted
as modified by 2013 WL 4453422 (W.D. Va. Aug. 16, 2013).
Thus, the Court will overrule Plaintiff's objection to
the Magistrate Judge's recommendation regarding liability
for denial of after-the-fact grievances.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Plaintiff's objections, adopts the Report, and
incorporates it herein. Therefore, it is the judgment of this
Court Plaintiff's Complaint is DISMISSED WITHOUT
PREJUDICE, AND WITHOUT ISSUANCE AND SERVICE OF PROCESS.