United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
plaintiff, Frank Stephon Johnson, a self-represented state
pretrial detainee, brings this civil rights action pursuant
to 42 U.S.C. § 1983. Plaintiff files this action in
forma pauperis under 28 U.S.C. § 1915 and §
1915A. This matter is before the court pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). The
court previously dismissed Plaintiff's claims against the
defendants named in the original Complaint for failure to
state a claim upon which relief can be granted, but the court
granted Plaintiff leave to amend his Complaint to name
Defendant Officer Roach, (ECF No. 12), and Plaintiff did so.
(ECF No. 20.) Having reviewed the Amended Complaint in
accordance with applicable law, the court concludes that it
should also be summarily dismissed without prejudice and
without issuance and service of process.
original Complaint, Plaintiff, an inmate at the Alvin S.
Glenn Detention Center, indicated that on January 12, 2018,
he slipped and fell walking out of the shower on a spot that
chronically leaks sewage because of faulty plumbing. (Compl.,
ECF No. 1 at 7-8.) Plaintiff indicated he injured his head
and right side in the fall. (Id. at 7.) The officer
on duty, Defendant Roach, called for medical staff to assist
Plaintiff when he fell. (Id.) The medical staff took
Plaintiff to the medical unit in a wheelchair, x-rayed his
elbow, and gave him pain medication. (Id.) The
medical staff told Plaintiff that nothing was wrong with him
“yet, ” and forced him to walk back to his cell.
alleged he received poor medical attention, including the
original defendants' failure to send him to a hospital to
treat his injuries. Plaintiff indicated he performs therapy
on himself to try and rebuild his strength on his right side.
(Id. at 10.) Plaintiff indicated he still has
problems with his back and right hip, and he continues to
have headaches on the right side of his forehead.
(Id.) He sought damages pursuant to 42 U.S.C. §
1983 for “cruel and unusual punishment” and
“deprivation, ” and he alleges the defendants
have been negligent. (Id. at 6, 15.)
Amended Complaint, filed on a standard complaint form for
pro se prisoner plaintiffs provided by the court,
Plaintiff named Officer Roach as the sole defendant and
indicated he brings this action pursuant to § 1983 for a
violation of the Fourteenth Amendment and negligence. (Am.
Compl., ECF No. 20 at 4.) Plaintiff failed to provide any
facts about Officer Roach, and he left blank a section of the
form asking Plaintiff to provide the underlying facts of his
claims. (Id. at 5.) Plaintiff listed the same
injuries as he did in his original Complaint, and indicated
he seeks damages for his injuries. (Id. at 6.)
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se Amended
Complaint pursuant to the procedural provisions of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, 110 Stat. 1321 (1996), including 28 U.S.C. §
1915 and 28 U.S.C. § 1915A. The 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, and is also governed by 28 U.S.C. § 1915A,
which requires the court to review a complaint filed by a
prisoner that seeks redress from a governmental entity or
officer or employee of a governmental entity. See McLean
v. United States, 566 F.3d 391 (4th Cir. 2009). Section
1915A requires, and § 1915 allows, a district court to
dismiss the case upon a finding that the action is frivolous,
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28
U.S.C. § 1915A(b).
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.
court is required to liberally construe pro se
complaints, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016). Nonetheless, 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); see also Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009) (outlining pleading requirements under Rule 8
of the Federal Rules of Civil Procedure for “all civil
action under 42 U.S.C. § 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). To
state a claim under § 1983, a plaintiff must allege: (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).
While Plaintiff fails to specifically indicate what provision
of the Fourteenth Amendment was violated by Officer Roach, in
light of the court's duty to liberally construe pro
se pleadings, the court construes the Amended Complaint
as raising a claim for a violation of Plaintiff's right
to due process and a state tort law claim of negligence.
Plaintiff's claims against Officer Roach should be
dismissed pursuant to 28 U.S.C. § 1915 and § 1915A
for failure to state a claim upon which relief can be granted
because Plaintiff fails to provide any facts about his claim
or Officer Roach plausibly suggesting a viable claim. See
Iqbal, 556 U.S. at 676 (providing that a plaintiff in a
§ 1983 action must plead that the defendant, through his
own individual actions, violated the Constitution);
Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)
(“In order for an individual to be liable under §
1983, it must be ‘affirmatively shown that the official
charged acted personally in the deprivation of the
plaintiff's rights. The doctrine of respondeat
superior has no application under this section.'
”) (quoting Vinnedge v. Gibbs, 550 F.2d, 928
(4th Cir. 1977)). Even considering the facts raised in
Plaintiff's original Complaint-specifically, that Officer
Roach called the medical staff to help Plaintiff when he
fell-Plaintiff still fails to plausibly allege that Officer
Roach violated ...