United States District Court, D. South Carolina
REPORT AND RECOMMENDATION (PARTIAL SUMMARY
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
a civil action filed pro se by a state prison inmate.
Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule
73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized
to review all pretrial matters in such pro se cases and to
submit findings and recommendations to the district court.
See 28 U.S.C. § § 1915(e); 1915A (as soon
as possible after docketing, district courts should review
prisoner cases to determine whether they are subject to
Delvion Hill (“Plaintiff”) alleges that he was
subjected to excessive force at Lieber Correctional
Institution on October 5, 2016. ECF No. 1 at 4. Plaintiff
sues Lieutenant James S. Johnson, alleging that he
unreasonably used 321 grams of chemical munitions against
him. Id. at 6. Plaintiff also names the South
Carolina Department of Corrections (“SCDC”) as a
Defendant, but there are no specific allegations of
wrongdoing by the state agency in the Complaint. Plaintiff
requests damages as his relief. Id.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of Plaintiff's pro se
Complaint filed in this case. This review has been conducted
pursuant to the procedural provisions of 28 U.S.C.
§§ 1915, 1915A, and the Prison Litigation Reform
Act of 1996, and in light of the following precedents:
Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke
v. Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Md. House of Corr., 64 F.3d 951 (4th Cir. 1995);
Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983);
Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
complaints are held to a less stringent standard than those
drafted by attorneys, Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), and a federal district court is
charged with liberally construing a complaint filed by a pro
se litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Kerr v. Marshall Univ. Bd. of Governors,
824 F.3d 62, 72 (4th Cir. 2016). When a federal court is
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. De'Lonta v.
Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003).
Nevertheless, the requirement of liberal construction does
not mean that this court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990). Even under this less stringent standard, the Complaint
filed in this case is subject to partial summary dismissal
under the provisions of 28 U.S.C. § 1915(e)(2)(B).
request for damages from SCDC is barred by the Eleventh
Amendment to the United States Constitution, which divests
this court of jurisdiction to entertain a suit for damages
brought against the State of South Carolina or its integral
parts. As a state agency, SCDC is considered an integral part
of the State of South Carolina. See S.C. Code Ann.
§ 24-1-30 (statute creating the agency of SCDC);
Fla. Dep't. of State v. Treasure Salvors, Inc.,
458 U.S. 670, 684 (1982) (state agencies are arms of the
state and entitled to Eleventh Amendment immunity);
Ram Ditta v. Md. Nat'l Capital Park &
Planning Comm'n, 822 F.2d 456, 457 (4th Cir. 1987)
(same); Laudman v. Padula, No. 3:12-2382-SB, 2013 WL
5469977, at *7 (D.S.C. Sept. 30, 2013) (dismissing claims
against state agency). The Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
See Alden v. Maine, 527 U.S. 706 (1999); College
Savs. Bank v. Fla. Prepaid Educ. Expense Bd., 527 U.S.
666 (1999); Bellamy v. Borders, 727 F.Supp. 247,
248-50 (D.S.C. 1989); Coffin v. S.C. Dep't of Soc.
Servs., 562 F.Supp. 579, 583-85 (D.S.C. 1983);
Belcher v. S.C. Bd. of Corr., 460 F.Supp. 805,
808-09 (D.S.C. 1978).
Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 99 n.9 (1984), a state must expressly consent to
suit in a federal district court. The State of South Carolina
has not consented to suit in a federal court. Section
15-78-20(e) of the South Carolina Code of Laws, a part of the
South Carolina Tort Claims Act (“SCTCA”)
expressly provides that the State of South Carolina does not
waive Eleventh Amendment immunity, consents to suit only in a
court of the State of South Carolina, and does not consent to
suit in a federal court or in a court of another state.
See McCall v. Batson, 329 S.E.2d 741, 743 (1985)
(Opinion abolishing sovereign immunity in tort “does
not abolish the immunity which applies to all legislative,
judicial and executive bodies and to public officials who are
vested with discretionary authority, for actions taken in
their official capacities.”). Thus, regardless of
whether this court liberally construes Plaintiff's
allegations against SCDC as an attempt to state a federal
constitutional-violation claim under 42 U.S.C. §
or as a state-law-based claim under the SCTCA, Plaintiff
fails to state a plausible claim against this state agency.
See, e.g., DeCecco v. Univ. of S.C., 918
F.Supp.2d 471, 498 (D.S.C. 2013) (finding that even if the
SCTCA allowed the plaintiff's gross negligence claim
against the agency to proceed in state court, “it would
not allow it to proceed in federal court”);
Lockhart v. S.C. Dep't. of Corr., No.
2:13-cv-1345-MGL, 2013 WL 3864052, at *2 (D.S.C. July 24,
2013) (“Plaintiff's Complaint seeking monetary
damages in this court pursuant to the S.C. Tort Claims Act is
subject to summary dismissal based on the Eleventh
Amendment's grant of sovereign immunity to the State of
South Carolina and its integral parts.”); Swinton
v. Allen, No. 3:12-cv-1587-CMC, 2013 WL 3197077, at *4
(D.S.C. June 21, 2013) (finding that an agency of the state
would be entitled to Eleventh Amendment immunity in federal
court and that a claim against the agency pursuant to the
SCTCA must be brought in state court), aff'd,
548 Fed.Appx. 941 (4th Cir. 2013); King v. Ozmint,
No. 0:11-cv-1455-TLW-PJG, 2012 WL 4092689, at *3 (Aug. 17,
2012) (“[T]he SCTA requires the agency or political
subdivision to be substituted when an employee is
individually named, and the agency is similarly entitled to
Eleventh Amendment immunity in federal court.”),
report adopted, 2012 WL 4092661 (D.S.C. Sept. 18,
it is recommended that the district court partially dismiss
the Complaint in this case without prejudice insofar
as it seeks damages from SCDC.See Brown v. Briscoe,998 F.2d 201, 202-04 (4th Cir. 1993); see also 28
U.S.C. § 1915(e)(2)(B); 28 U.S.C.
§ 1915A (as soon as possible after docketing, district
courts should review prisoner cases to determine ...