United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Merchant United States Magistrate judge
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.
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
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].
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.
§ 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
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.
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).
attention is directed to the important notice on the uext
of Right to File Objections to Report and
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
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 ...