United States District Court, D. South Carolina, Greenville Division
Gary T. Cunningham, Plaintiff,
Cherokee County Detention Center, Defendant.
REPORT AND RECOMMENDATION
F. MCDONALD UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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).
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
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 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
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),
(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