United States District Court, D. South Carolina, Charleston Division
Michael A. Breyan, #332098, Plaintiff,
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Michael A. Breyan has filed this civil action pursuant to 42
U.S.C. § 1983, complaining of his medical care. (DE# 1).
Plaintiff is a state prisoner currently incarcerated at
Lieber Correctional Institution located in Ridgeville, South
Carolina. He is proceeding pro se and in forma
pauperis. Pursuant to 28 U.S.C. §636(b)(1), and
Local Rule 73.02(B)(2) (D.S.C.), the undersigned United
States Magistrate Judge is authorized to review the Amended
Complaint and to submit findings and recommendations to the
United States District Judge. Upon careful review, the
Magistrate Judge recommends that the Amended Complaint be
summarily dismissed without
prejudice, and without issuance and service of
process, for the following reasons:
Standard of Review
established local procedure in this judicial district, the
Magistrate Judge has carefully reviewed this pro se
prisoner complaint pursuant to 28 U.S.C. § 1915 and in
light of the following precedents: Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Estelle v.
Gamble, 429 U.S. 97 (1976); Haines v. Kerner,
404 U.S. 519 (1972); and Gordon v. Leeke, 574 F.2d
1147 (4th Cir. 1978).
Prison Litigation Reform Act (“PLRA”) permits an
indigent litigant to commence an action in federal court
without prepaying the administrative costs of proceeding with
the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against
possible abuses of this privilege, the statute allows the
court to dismiss the case upon finding that the action is
“frivolous or malicious, ” “fails to state
a claim on which relief may be granted, ” 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. 25, 31 (1992).
Under 28 U.S.C. §1915(e)(2)(B), a claim based on a
meritless legal theory may be dismissed sua sponte
“at any time.” Neitzke, 490 U.S. 319.
The PLRA also provides for the screening of complaints
“in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a).
Court is required to liberally construe pro se
documents, Estelle v. Gamble, 429 U.S. 97 (1976),
holding them to a less stringent standard than those drafted
by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980) (per
curiam). The liberal construction afforded pro se
pleadings means that if the court can reasonably read the
pleadings to state a valid claim, it should do so, but a
district court may not rewrite a petition to “conjure
up questions never squarely presented” to the court.
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985). 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 (4th Cir. 1990).
filed this action against “All Medical Staff” on
December 27, 2016. (DE# 1, Complaint). Although the
allegations of the Complaint were not clear, Plaintiff
appeared to be attempting to sue medical staff at four
different prisons. On January 12, 2017, the Magistrate Judge
recommended that the Plaintiff's Complaint be dismissed
without prejudice because: 1) the Complaint merely sued
“All Medical Staff” and failed to identify any
specific persons the Plaintiff actually wished to sue (i.e.
he sued only a “collective term” that did not
name a person for purposes of 42 U.S.C. § 1983); 2) the
Complaint failed to allege specific acts by any medical
providers, and thus, failed to state a plausible claim
against any defendant; and 3) the Complaint sought relief
(i.e. release from prison) that was not available or
appropriate in a § 1983 action. (DE# 7, Report and
Recommendation). The District Court adopted the Report and
Recommendation, and dismissed the case without prejudice.
(DE# 10, Order of February 3, 2017). Plaintiff filed no
objections, nor did he ask to amend his Complaint. Plaintiff
did, however, file an appeal.
31, 2017, the Fourth Circuit Court of Appeals dismissed the
appeal for lack of jurisdiction and remanded the case to the
District Court with instructions “to allow Breyan to
amend his complaint.” (DE#20, copy of unpublished
opinion). On June 5, 2017, the District Court followed the
remand instructions, reinstated the case, and entered an
Order directing Plaintiff “to file his amended
complaint, if any, no later than 30 days from the entry of
this order.” (DE# 23, Order). Plaintiff had until July
5, 2017 to file an amended pleading.
filed an Amended Complaint (DE# 28) on July 17, 2017. Despite
this Court's prior detailed explanation of the prior
Complaint's deficiencies, Plaintiff did not cure any such
deficiencies in his Amended Complaint and merely named
“Medical” as a defendant. Plaintiff also
continued to ask for relief that is not available. In an
abundance of caution, this Court gave Plaintiff yet another
opportunity to file an amended pleading that sought
appropriate relief and actually named the defendants that
Plaintiff wished to sue. (DE# 30, Order of 07/18/2017). The
Order of 07/18/2017 specifically advised Plaintiff that his
“First Amended Complaint does not cure the deficiencies
already pointed out to Plaintiff.” The Order of
07/18/2017 explained in plain language and in bold
under-lined typeface that “[f]or purposes
of § 1983, Plaintiff must sue an individual person, not
an entire department.” (Id.).
The Order of 07/18/2017 gave Plaintiff “thirty (30)
days from the date of this Order in which to file a Second
Amended Complaint.” (Id.). The Order also
specifically explained that the “Court does not award
cars and houses as damages.” (Id.).
Court has fully complied with the remand instructions and
given Plaintiff adequate opportunity to amend.
Plaintiff's Amended Complaint has not cured any of the
deficiencies already identified by the prior Report and
Recommendation. (DE# 7). Despite being given sufficient
opportunity to file a Second Amended Complaint, Plaintiff has
not availed himself of such opportunity. Therefore, this case
should be dismissed without prejudice for following reasons:
The Amended Complaint's Allegations
Amended Complaint is often difficult to follow. He sues
“Medical” in “individual capacity.”
(DE# 28 at 2). The gist of Plaintiff's allegations is
that while incarcerated at Lee Correctional Institution in
November of 2015, he refused to come out of his cell and
correctional officers had to use force to remove him. He
complains that he was injured and wanted an x-ray, but did
not receive one. He alleges that he “@ Lee County got
shot 3 times [with rubber bullets], requested x-ray cause had
broke ribs … never got an x-ray.” (Id.
at 5, ¶ IV.A) “Statement of Claim”).
Plaintiff alleges (verbatim) that “till this day
I've still haven't goten x-ray.” (Id.
at 5, ¶ IV.B). He alleges that he has physical and
mental injuries. ...