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Green v. South Carolina Law Enforcement Division

United States District Court, D. South Carolina

March 5, 2018

Darrell Green, #249354, Plaintiff,
v.
South Carolina Law Enforcement Division, 15th Circuit Drug Enforcement Unit S/A Trevor Howlett, S/A Glenn Woods, Agents Derrick Suggs, Agent y Jones, Ofc. Shane Keith, Florence County Sheriff's Department Defendants.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         This is 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).

         STANDARD OF REVIEW

         Under 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).

         This 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).

         This 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 advocate.).

         BACKGROUND

         Plaintiff is a state prisoner and alleges his Fourth, Fifth, and Fourteenth Amendment[1] rights have been violated and he was subject to trespass and illegal arrest. Plaintiff alleges on August 6, 2014, and August 7, 2014, [2] 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).

         Plaintiff 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.

         Plaintiff 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.[3]

         DISCUSSION

         Plaintiff 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).

         Under § 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).

         In 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 ...


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