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Strickland v. Bennett

United States District Court, D. South Carolina

August 8, 2018

Glen Strickland, Jr., Plaintiff,
v.
Lt. Bennett, Sgt. Creel, Sgt. Fish, Lt. Peay, Lt. Blackburn, Capt. Golden, Sgt. Barns, Lt. Wessinger, Sgt. Bilu, Lt. Papella, Sgt. Sidney, Lt. Roe, Sgt. Anderson, Sgt. Brown, Sgt. Rucker, Ofc. Bunkley, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Merchant United States Magistrate judge

         The Plaintiff, Glenn Strickland, Jr., proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff is currently an inmate at the Evans Correctional Institution, part of the South Carolina Department of Corrections (SCDC). At the time of the alleged incidents he was housed at the Perry Correctional Institution, also part of the SCDC. Plaintiff alleges violations of his constitutional rights.

         Discussion

         Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light \of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner. 404 U.S. 519 (1972), Nasim v. Warden. Maryland House of Com, 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville. 712 F.2d 70 (4th Cir. 1983). Pro se 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 pro se complaint to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto. 405 U.S. 319 (1972); Erickson v. Pardus. 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 555-56 (2007)).

         However, even when considered pursuant to this liberal standard, the Defendants Lt. Peay, Sgt. Barns, Lt. Wessinger, Lt. Roe, Sgt. Anderson. Sgt. Brown, and Sgt. Rucker are all subject to summary dismissal as party Defendants. 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 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].

         Specifically, Plaintiffs Complaint, on its face, does not state a plausible, non-frivolous § 1983 claim against Defendants Peay, Barns, Wessinger, Roe, Anderson, Brown, and Rucker because the Complaint fails to include sufficiently clear factual allegations against these Defendants of any personal responsibility or personal wrongdoing in connection with the alleged violations of any of Plaintiffs constitutionally protected rights. Although Plaintiff has named Defendants Barns, Roe, Anderson, and Rucker in the caption of his Complaint, he fails to make any specific allegations against these Defendants. Thus, Plaintiffs Complaint as to these Defendants is in violation of the directive in Federal Rule of Civil Procedure 8(a) that pleadings shall contain "short and plain statement [s]" of the basis for the court's jurisdiction and of the basis for a plaintiff s claims against each defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2OO7)[requiring, in order to avoid dismissal, '"a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'"]. As for Defendants Peay, Wessinger, and Brown, Plaintiff merely states that these Defendants harassed him. Complaint, ECF No. 1 at 9.

         In a § 1983 action, a plaintiff must plead facts indicating that a defendant acted personally in the alleged deprivation of his constitutional rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977); Faltas v. South Carolina. 2012 WL 988105, at *4 (D.S.C. Jan. 27, 2012), adopted by, 2012 WL 988083 (D.S.C. Mar. 22, 2012), affd 489 Fed.Appx. 720 (4th Cir. 2012). When a complaint contains no personal allegations against a defendant, that defendant is properly dismissed. See, e.g.. Reaves v. Richardson. No. 4:09-820-TLW-SVH, 2011 WL 2119318, *6 (D.S.C. Mar. 1, 2011) ["without such personal involvement, there can be no liability under section 1983"], adopted by. 2011 WL 2112100 (D.S.C. May 27, 2011); Fox v. Drew. No. 8:12-cv-421-MGL, 2013 WL 4776706, *11 (D.S.C. Sept. 4, 2Ol3)[explaining that a defendant is liable in his individual capacity only for his personal wrongdoing], affd 563 Fed.Appx. 279 (4th Cir. 2014). Therefore, because there are no allegations of any wrongdoing by Defendants Barns, Roe, Anderson, and/or Rucker, Plaintiffs Complaint is both frivolous and fails to state a claim on which relief can be granted as to these Defendants. See Potter v. Clark. 497 F.2d 1206, 1207 (7th Cir. 1974) ["Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed."]; Newkirk v. Circuit Court of City of Hampton. No. 3:14CV372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) [complaint subject to summary dismissal where no factual allegations against named defendants within the body of the pleading]; see also Krvch v. Hyass, 83 Fed.Appx. 854, 855 (8th Cir. 2003); Black v. Lane. 22 F.3d 1395, 1401 n.8 (7th Cir. 1994); Walker v. Hodge. 4 F.3d 991, 1993 WL 360996, at * 2 n.2 (5th Cir. 1993); Banks v. Scott 3.13CV363, 2014 WL 5430987, at *2 (E.D. Va. Oct. 24, 2014); see also Cochran v. Morris. 73 F.3d 1310 (4th Cir. 1996)[statute allowing dismissal of in forma pauperis claims encompasses complaints that are either legally or factually baseless]; Wellery. Dep't of Social Servs.. 901 F.2d at 389 n.2 [dismissal proper where there were no allegations to support claim].

         As for the Defendants Peay, Wessinger, and Brown, Plaintiff has merely alleged that these Defendants "harassed [Plaintiff] in D-dorm" (ECF No. 1 at 9), without any further allegations. It is well established that a mere threat or a general claim of harassment is not a basis for a § 1983 claim. See Siglar v. Hiehtower. 112 F.3d 191, 193 (5th Cir. l997)[noting that verbal abuse by a prison guard does not give rise to a cause of action under § 1983]; Morva v. Johnson. No. 09-515, 2011 WL 3420650, at * 7 (W.D.Va. Aug. 4, 201 l)[Plaintiff failed "to establish that a defendant violated a constitutional right by harassing, threatening, or ridiculing him"]; DePaola v. Taylor No. 10-398, 2011 WL 2445859, at * 9 (W.D.Va. June 15, 2Oll)["[A]n institutional employee's verbal harassment of an inmate or idle threats made to an inmate, even if they cause an inmate fear, anxiety or discomfort, do not present a claim of constitutional magnitude."], adopted by. 2011 WL 3105336 (W.D.Va. July 25, 2011), affd.. 470 Fed.Appx. 186 (4th Cir. Mar. 27, 2012); Musto v. Trinity Food Service. Inc.. No. 07-231, 2010 WL 3565723, at * 13 (M.D.Fla. 2OlO)["Verbal harassment does not state a claim for relief in a federal civil rights action."]; Ajaj v. United States. 479 F.Supp.2d 501, 538 n. 16 (D.S.C. 2007); Malsh v. Austin. 901 F.Supp. 757 (S.D.N.Y. 1995)["Verbal assault, standing alone, is not a... cognizable injury in a 1983 civil rights action"]; Sluvs v. Gribetz. 842 F.Supp. 764, 765 n.l (S.D.N.Y. 1994), affd.. Sluvs v. Gribetz. 41 F.3d 1503 (2d Cir. 1994). Rather, Plaintiffs factual allegations must show that these Defendants actually engaged in conduct that denied him a constitutional right. See Hernandez v. Florida Dep't. of Corrs.. 281 Fed.Appx. 862, 866 (11th Cir. 2008) [Holding that plaintiffs allegations of verbal abuse and threats by prison officials did not state a constitutional claim because the defendants never carried out the threats, and "verbal abuse alone is insufficient to state a claim"]; Swoboda v. Dubach. 992 F.2d 286, 290 (10th Cir. l993)[allegations officers threatened to kill inmate not cognizable under 1983]; Rivers v. Pippen. No. 12-480, 2012 WL 6853507, at * 2 (N.D. Fla. Dec. 12, 2012) [Dismissing plaintiffs claim that guard threatened him with bodily harm], adopted by, 2013 WL 147402 (N.D. Fla. Jan. 14, 2013). No. such allegations or claims are made against any of these three Defendants.

         Recommendation

         Based on the foregoing, it is recommended that the Court dismiss Defendants Lt. Peay, Sgt. Barns, Lt. Wessinger, Lt. Roe, Sgt. Anderson, Sgt. Brown, and Sgt. Rucker as party Defendants in this case, without prejudice and without issuance and service of process. [*]The Complaint should be served on the remaining Defendants (Lt. Bennett, Sgt. Creel, Sgt. Fish, Lt. Blackburn, Capt. Golden, Sgt. Bilu, Lt. Papella, Sgt. Sidney, and Ofc. Bunkley).

         Plaintiffs attention is directed to the important notice on the uext 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 recommendation.'" Diamond v. Colonial Life & Ace. Ins. Co.. 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal ...


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