United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
a civil action filed by a state prisoner. 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).
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).
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).
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
is a state prisoner and alleges his Fourth, Fifth, and
Fourteenth Amendment rights have been violated and he was
subject to trespass and illegal arrest. Plaintiff alleges on
August 6, 2014, and August 7, 2014,  he was subject to illegal
trespass by Defendants Howlett, Woods, Suggs, and Jones, when
they attached a GPS tracking device on a car on
Plaintiff's property in Conway. It was not properly
tracking and they returned again the next night to change out
tracking devices. (ECF No. 1-1 at 1). Plaintiff only attached
page 1 of the SLED report which states the contents are the
report, a GPS tracking order, and 2 DVDs. The narrative says
the court order was obtained on July 28, 2014. Plaintiff
handwrote on the form that he had not seen the order.
Plaintiff also attached a letter from his attorney in October
2017, which states we “do not have a search warrant for
the GPS tracker on the vehicle.” (ECF No. 1-1 at 2).
further alleges while driving on I-95, he was stopped in
Florence County by Defendant Keith and unlawfully arrested on
August 13, 2014. Plaintiff attached page one of a four- page
report from Florence County, which stated “assisting
other agency.” (ECF No. 1-1 at 3). The report further
stated that the radar speed of Plaintiff's vehicle was 74
in a 70 and the vehicle failed to maintain the lane by riding
the white line. No GPS tracker is mentioned in the report
page that is attached.
alleges there was no warrant to gain access to his property
and no warrant to place the tracking device. Plaintiff
alleges Keith was monitoring the tracking device and this led
to Plaintiff's arrest. Plaintiff requests monetary,
declaratory, and injunctive relief.
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).
§ 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
under the color of state law.” West v. Atkins,
487 U.S. 42, 48 (1988).
order to assert a plausible § 1983 claim against any
particular state actor, a “causal connection”
must exist between the conduct alleged by the plaintiff and
the particular defendant named in the suit. See Kentucky
v. Graham, 473 U.S.159, 166 (1985); Rizzo v.
Good, 423 U.S. 362, 371-72 (1976) (a § 1983
plaintiff must show that he suffered a specific injury
resulting from a specific defendant's specific conduct
and must show an affirmative link between the injury and that
conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th
Cir.1977) (for an ...