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Breyan v. Medical

United States District Court, D. South Carolina, Charleston Division

November 15, 2017

Michael A. Breyan, #332098, Plaintiff,
v.
Medical, Defendant.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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:

         I. Standard of Review

         Under 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).

         The 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).

         This 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).

         II. Procedural History

         Plaintiff 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.

         On May 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.

         Plaintiff 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.).

         This 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:

         IV. Discussion

         A. The Amended Complaint's Allegations

         Plaintiff's 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, ΒΆ IV.B). He alleges that he has physical and mental injuries. ...


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