United States District Court, D. South Carolina
Michael Joseph Kaminski, #9738281 a/k/a Michael Kaminski, #257960 Plaintiff,
Michael Doyle, Billy Balies, Officer Morrison, Cpl. Catchot, Randy Demory, Defendants.
REPORT OF MAGISTRATE JUDGE
F. MCDONALD UNITED STATES MAGISTRATE JUDGE
plaintiff, Michael Joseph Kaminski, proceeding pro
se, seeks relief pursuant to 42 U.S.C. § 1983.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate
judge is authorized to review all pretrial matters in cases
filed under 42 U.S.C. § 1983, and submit findings and
recommendations to the District Court.
plaintiff is presently in the custody of the South Carolina
Department of Mental Health under the provisions of the South
Carolina Sexually Violent Predator Act. S.C. Code Ann.
§§ 44-48-10 to 44-48-170. At the time of the events
giving rise to this action, the plaintiff was a pretrial
detainee at the Berkeley County Detention Center
(“BCDC”) (see generally, doc 1-1 at 65-67).
plaintiff alleges that on March 14, 2016, the defendants
Officer Morrison, Cpl. Catchot, and Randy Demory failed to
protect him from two separate sexual assaults by the
defendants Michael Doyle and Billy Balies (doc. 1-1 at 3,
67). The plaintiff seeks unspecified monetary damages from
BCDC (doc. 1 at 74).
plaintiff initially filed this action in the Berkeley County
Court of Common Pleas, and it was removed by counsel for the
defendants Officer Morrison, Cpl. Catchot, and Randy Demory
(doc. 1). As the plaintiff had not served the defendants
Michael Doyle and Billy Balies, on September 20, 2017, the
undersigned Magistrate Judge issued a proper form order
instructing the plaintiff to bring the case into proper form
with respect to the defendants Michael Doyle and Billy Balies
by providing service documents for those defendants. The
plaintiff did not respond to the order. On October 17, 2017,
the plaintiff was given a second opportunity to provide the
service documents for those defendants and was told that if
he failed to provide the requested information that the
undersigned may recommend dismissal of those defendants for
failure to prosecute and failure to comply with an order of
the court (doc. 10 at 1). After the plaintiff failed to
respond to that order, the undersigned filed a Report and
Recommendation recommending that the case be dismissed with
respect to Michael Doyle and Billy Balies pursuant to Federal
Rule of Civil Procedure 41(b) (doc. 16). The plaintiff filed
objections to the Report and Recommendation, and subsequently
filed service documents with respect to those two defendants
District Court declined to adopt the Report and
Recommendation and recommitted the action to the undersigned
Magistrate Judge to determine whether the plaintiff had
complied with the proper form orders and whether the case had
been brought into proper form (doc. 28). The court finds the
case is now in proper form, but for the reasons that follow,
recommends that the action be dismissed without prejudice and
without issuance and service of process with respect to the
defendants Michael Doyle and Billy Balies.
pro se litigant, the plaintiff's pleadings are
accorded liberal construction and held to a less stringent
standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). However, even under this less stringent
standard, the pro se pleading remains subject to
summary dismissal. 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
cognizable in a federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
complaint is filed pursuant to 42 U.S.C. § 1983, which
“‘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) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil
action under Section 1983 “creates a private right of
action to vindicate violations of ‘rights, privileges,
or immunities secured by the Constitution and laws' of
the United States.” Rehberg v. Paulk, 566 U.S.
356, 361 (2012) (quoting 42 U.S.C. § 1983). To
state a claim under Section 1983, a plaintiff must allege 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) (citations omitted).
defendants Michael Doyle and Billy Balies are not amenable to
suit under Section 1983 because they were not acting under
color of state law. “Anyone whose conduct is
‘fairly attributable to the state' can be sued as a
state actor under § 1983.” Filarsky v.
Delia, 566 U.S. 377, 383 (2012) (quoting Lugar v.
Edmondson Oil Co, 457 U.S. 922, 937 (1982)). To
determine whether state action is present, no single factor
is determinative and the “totality of the
circumstances” must be evaluated. Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 341-43
(4th Cir. 2000). However, purely private conduct, no matter
how wrongful, is not actionable under 42 U.S.C. § 1983
and the United States Constitution. See Lugar, 457
U.S. at 936-37; Mentavlos v. Anderson, 249 F.3d 301,
310 (4th Cir. 2001). In this case, the complaint alleges no
facts to show that defendants Michael Doyle and Billy Balies
are state actors amenable to suit under Section 1983.
Accordingly, the complaint fails to state a claim upon which
relief can be granted against those defendants.
recommended that the District Court dismiss the defendants
Michael Doyle and Billy Balies without prejudice and without
issuance and service of process. Furthermore, in the
court's view, the plaintiff cannot cure any of the
defects in his claims against defendants Michael Doyle and
Billy Balies by amending his complaint. See Goode v.
Cent. Va. Legal Aid Soc'y, 807 F.3d 619, 623 (4th
Cir. 2015). The court therefore declines to recommend that
leave be automatically given to the plaintiff to amend his
action remains pending against the defendants Officer
Morrison, Cpl. Catchot, and Randy Demory.
Plaintiff's attention is ...