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Kershaw v. City of Spartanburg Police Department

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

June 8, 2018

James Demarlow Kershaw, #17-10687, Plaintiff,
v.
City of Spartanburg Police Department, Stacy N. Smith, Defendants.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald United States Magistrate Judge.

         The plaintiff, proceeding pro se seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is the plaintiff's amended complaint filed pursuant to 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (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. Having reviewed the amended complaint in accordance with applicable law, the undersigned recommends summary dismissal as to the defendant City of Spartanburg Police Department. In an order entered contemporaneously with this report and recommendation, service of process of the amended complaint is authorized upon the newly added defendant Stacy N. Smith.

         BACKGROUND

         The plaintiff, James Demarlow Kershaw, a pretrial detainee at the Spartanburg County Detention Center, filed his initial complaint on April 20, 2018 (doc. 1) against the defendants the City of Spartanburg Police Department and an Unknown Officer alleging that they violated his constitutional rights (doc. 1 at 4). On May 8, 2018, the court issued an order advising the plaintiff that his complaint was subject to dismissal as it failed to state a claim upon which relief could be granted. The plaintiff was advised that he could attempt to correct the defects in his complaint by filing an amended complaint along with the appropriate service documents. The plaintiff has done so. He filed an amended complaint on May 22, 2018 (doc. 16). In the amended complaint, the plaintiff has now identified the “Unknown Officer” from the original complaint as Stacy N. Smith (“Smith”). As to the defendant Smith, the plaintiff appears to allege claims secured under the Fourth and Fourteenth Amendment to be free from the use of unlawful deadly force and excessive force. Specifically, the plaintiff contends that on the morning of November 23, 2017, the defendant Smith “harassed me, shot me and attempted to kill me without proper cause which I believe could be considered police brutality” (doc.16 at 7). He further contends that “Smith who was working for the Spartanburg Police Department as a police officer used excessive force by shooting a gun at me more than once and even after she shot me she continued to shoot as I proceeded to leave the scene” (Id.).

         As to the defendant the City of Spartanburg Police Department, the plaintiff appears to allege it is liable for the defendant Smith's actions because she was employed by the defendant City of Spartanburg Police Department (doc. 16 at 4). The plaintiff seeks monetary damages.

         DISCUSSION

         The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the district court to dismiss a case if it is satisfied 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). As a 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 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains 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 the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct a plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         This amended 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 § 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, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 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).

         The plaintiff fails to state a claim under § 1983 against the defendant the City of Spartanburg Police Department because it is not a person as required by § 1983. It is well settled that only “persons” may act under color of state law, so a defendant in a § 1983 action must qualify as a “person.” Although suing an entire department may be a lawsuit against a group of people, groups of people are not amenable to suit under § 1983. Buildings and correctional institutions, as well as sheriff's departments and police departments, usually are not considered legal entities subject to suit. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that a medical department is not a person pursuant to § 1983).

         Moreover, even if a local police department could be considered a proper defendant in this case, the amended complaint provides insufficient factual allegations against the defendant City of Spartanburg Police Department to state a cognizable § 1983 claim. To establish municipal liability under § 1983, a plaintiff must demonstrate a violation of his constitutional rights “taken in furtherance of some municipal ‘policy or custom.'” Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir.1984) (citing Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 694 (1978). The amended complaint in the case sub judice fails to identify any municipal policy or custom associated with the events giving rise to this action. Thus, the defendant the City of Spartanburg Police Department is entitled to summary dismissal from this case.

         RECOMMENDATION

         As referenced above, the undersigned gave the plaintiff an opportunity to correct the defects identified in his initial complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed. As discussed herein, the plaintiff's amended complaint fails to correct the identified deficiencies and, like the original complaint, fails to state a claim upon which may be granted against the City of Spartanburg Police Department. Accordingly, the district court should dismiss this action as to this defendant with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, No. 17-7621 (4th Cir. June 4, 2018), http://www.ca4.uscourts.gov/dailyopinions/opinions060418.htm (stating that district court should, "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order."). The plaintiff's case against the defendant Smith shall proceed. The plaintiff's attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the ...


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