United States District Court, D. South Carolina
Bryantavious K. Murray, Plaintiff,
Greenville County Sheriff's Office, Defendants.
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
K. Murray (“Plaintiff”), proceeding pro se and in
forma pauperis, is an inmate incarcerated in the custody of
the South Carolina Department of Corrections
(“SCDC”). He filed this action against the
Greenville County Sheriff's Office (“GCSO” or
“Defendant”) in the Greenwood County Court of
Common Pleas, and GCSO removed the case to this court on July
13, 2018. [ECF No. 1]. Defendant removed the case pursuant to
28 U.S.C. § 1331, as Plaintiff alleges violations of his
constitutional rights, which claims are construed as brought
pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule
73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the
undersigned for all pretrial proceedings.
matter comes before the court on Defendant's motion to
dismiss [ECF No. 15]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Plaintiff of the dismissal procedures and the
possible consequences if he failed to respond adequately to
Defendant's motion. [ECF No. 17]. Plaintiff filed a
response on August 29, 2018. [ECF No. 19]. Having carefully
considered the record in this case, the undersigned
recommends the district judge grant Defendant's motion to
dismiss Plaintiff's federal claims.
Plaintiff's complaint is partially illegible, his
allegations stem from his 2012 arrest and pretrial detention
in 2012 and 2013. The gravamen of Plaintiff's claims
relate to his arrest, the investigation of the charges
against him, and his treatment while detained in the
Greenwood County Detention Center. According to SCDC records,
Plaintiff was admitted to SCDC custody on July 24, 2013,
where he has remained to the present.
motion to dismiss, GCSO argues that it is not a person for
purposes of § 1983 and that Plaintiff has not identified
a policy or custom that caused his injuries under Monell
v. Dept. of Social Services, 436 U.S. 658 (1978).
Standard on Motion to Dismiss
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court
is “not required to accept as true the legal
conclusions set forth in a plaintiff's complaint.”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). Indeed, “[t]he presence of a few conclusory
legal terms does not insulate a complaint from dismissal
under Rule 12(b)(6) when the facts alleged in the complaint
cannot support” the legal conclusion. Young v. City
of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss,
a court may consider “documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal 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). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
argues that it is not a “person” subject to suit
pursuant to § 1983. Defendant is a county sheriff's
department, and sheriff's departments in South Carolina
are considered alter egos or arms of the state. See
Gulledge v. Smart, 691 F.Supp. 947, 954-55 (D.S.C. 1988)
(discussing sheriff as agent and alter ego of state and that
deputy sheriffs act as the sheriff's agent),
aff'd, 878 F.2d 379 (4th Cir. 1989); Carroll
v. Greenville County Sheriff's Dep't, 871
F.Supp. 844, 846 (D.S.C. 1994) (suit against the
sheriff's office is suit against the state); S.C. Code
Ann. § 23-13-550. As an arm of the state, Defendant is
not a “person” within the meaning of § 1983.
See Will v. Michigan Dep't of State Police, 491
U.S. 58, 71, (1989) (“[N]either a state nor its
officials acting in their official capacities are
‘persons' under § 1983.”); Davis v.
S.C. Dep't of Corrections, No. 0:13-2790-TMC-PJG
(D.S.C. Nov. 3, 2014), report and recommendation
adopted (D.S.C. Nov. 21, 2014). The Supreme Court has
indicated that the “no person” defense discussed
in Will is not waivable. Arizonans for Official
English v. Arizona, 520 U.S. 43, 69
Plaintiff argues that his allegations identify RJ Gossett and
Clint A. Burden as persons culpable for his claims [ECF No.
19], he has not named these individuals as defendants.
Therefore, the undersigned recommends Plaintiff's
constitutional claims be dismissed without prejudice. Out of
abundance of caution,  the undersigned recommends Plaintiff be
allowed 14 days from the district judge's order to file a
clearly legible amended complaint. Plaintiff is reminded that
a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). If the district judge
accepts this recommendation and Plaintiff fails to file a
legible amended complaint within 14 days of the district
court's order on the motion to dismiss, the undersigned
recommends the district judge dismiss Plaintiff's