United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges Columbia, South Carolina United States Magistrate
Ray Mitchell (“Plaintiff”), proceeding pro se and
in forma pauperis, brought this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his constitutional rights
during his incarceration in the custody of the South Carolina
Department of Corrections (“SCDC). He sues SCDC
Director Bryan Stirling, Kershaw Correctional Institution
Warden Dunlap, and Ridgeland Correctional Institution Warden
Cohen (“Defendants”). Pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule
73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the
undersigned for all pretrial proceedings.
matter comes before the court on Defendants' motion to
dismiss. [ECF No. 19]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Plaintiff of the dismissal procedures and the
possible consequences if he failed to respond adequately to
Defendants' motion. [ECF No. 20]. The motion having been
fully briefed [ECF No. 22], it is ripe for disposition.
complaint contains a laundry list of allegations, some of
which may be liberally construed to allege constitutional
violations. Defendants argue that (1) that Plaintiff may not
bring a claim against them in their official capacities
pursuant to § 1983 and (2) they are not liable to
Plaintiff in their supervisory capacities and he has failed
to make specific allegations against them. [ECF No. 19]. In
response, Plaintiff indicates that he wishes to amend his
complaint [ECF No. 22 at 2].
undersigned grants Plaintiff's request to amend his
complaint. The Clerk's office is directed to send
Plaintiff a blank complaint form and Plaintiff is directed to
file his amended complaint by December 8, 2017. In drafting
his amended complaint, Plaintiff is advised that a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Although the court must liberally
construe a pro se complaint, the United States Supreme Court
has made it clear that a plaintiff must do more than make
conclusory statements to state a claim. See Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the
complaint must contain sufficient factual matter, accepted as
true, to state a claim that is plausible on its face, and the
reviewing court need only accept as true the complaint's
factual allegations, not its legal conclusions.
Iqbal, 556 U.S. at 678-79.
Plaintiff is not required to plead facts sufficient to prove
his case as an evidentiary matter in the complaint, he must
allege facts that support a claim for relief. Bass v.
E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003); Trulock v. Freeh, 275 F.3d 391, 405 (4th
Cir. 2001) (finding that plaintiff must “offer more
detail, however, than the bald statement that he has a valid
claim of some type against the defendant”). Plaintiff
should specify how each defendant's conduct allegedly
violated his constitutional rights.
Plaintiff's request to amend his complaint is granted,
the undersigned recommends Defendants' motion to dismiss
be denied as moot.
parties are directed to note the important information in the
attached “Notice of Right to File Objections to Report
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'”
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
Robin L. Blume, Clerk
United States District ...