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Cunningham v. Cherokee County Detention Center

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

June 15, 2018

Gary T. Cunningham, Plaintiff,
v.
Cherokee County Detention Center, Defendant.

          REPORT AND RECOMMENDATION

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Gary T. Cunningham, a pretrial detainee in the Cherokee County Detention Center, proceeding pro se and in forma pauperis, brings a civil action pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the district court.

         STANDARD OF REVIEW

         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.), the undersigned is authorized to review the complaint for relief and submit findings and recommendations to the District Court. 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, 94 (2007) (per curiam). 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, 391 (4th Cir. 1990).

         In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

         BACKGROUND

         The Cherokee County Detention Center is the detention center for Cherokee County, South Carolina. The plaintiff alleges that he has been denied his COPD inhaler medication since December 21, 2017, while in custody at the Cherokee County Detention Center. He does not name any persons as defendants, but alleges that he left grievances at the supervisors desk in housing unit E. He seeks “$75, 000 to $100, 000 for reduction in my breathing capacity.” (doc. 1).

         On May 24, 2018, the court entered an Order and Notice advising the plaintiff that his complaint was subject to dismissal as it fails to state a claim upon which relief may be granted (doc. 8). The plaintiff was give fourteen days to correct the defects identified in the court's order by filing an amended complaint. The time provided in the court's order for filing an amended complaint has passed, and the plaintiff has failed to do so. As such, for the reasons set forth herein, the undersigned recommends that this case be dismissed.

         DISCUSSION

         This complaint is filed pursuant to 42 U.S.C. § 1983[1], 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).

         Here, the allegations of the plaintiff's complaint's are sparse and conclusory. The plaintiff names no persons as defendants, but only the Cherokee County Detention Center. The Detention Center cannot be sued under § 1983 because it is not a person. 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. See Harden v. Green, 27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the medical department of a prison is not a person pursuant to § 1983); Green v. Murdaugh, C/A No. 5:12-1086-RMG-KDW, 2012 WL 1987764, *2 (D.S.C. May 07, 2012), adopted by 2012 WL 1987259 (D.S.C. June 04, 2012) (dismissing because police department was not subject to suit under § 1983). Therefore, the plaintiff fails to state a § 1983 claim against the Cherokee County Detention Center.

         As addressed above, by order issued May 24, 2018, the undersigned gave the plaintiff an opportunity to correct the defects identified in his 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. The plaintiff failed to file amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action 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.").

         RECO ...


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