United States District Court, D. South Carolina, Spartanburg Division
REPORT OF MAGISTRATE JUDGE
F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
plaintiff, James Demarlow Kershaw, proceeding pro se
and in forma pauperis, brings this action pursuant
to 42 U.S.C. § 1983. The plaintiff is a pretrial
detainee at the Spartanburg County Detention Center and
alleges violations of his constitutional rights (doc.1).
Pursuant to the provisions of Section 636(b)(1)(B) and Local
Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is
authorized to review all pretrial matters in cases filed
under 42 U.S.C. § 1983, and submit findings and
recommendations to the district court.
OF THE FILING FEE:
plaintiff has submitted an Application to Proceed Without
Prepayment of Fees and Affidavit (Form AO 240) to this Court
pursuant to 28 U.S.C. § 1915(a)(1) (doc. 2). A review of
the motion reveals that the plaintiff does not have the funds
to prepay the filing fee. The plaintiff's motion for
leave to proceed in forma pauperis is
to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is
authorized to review the complaint for relief and submit
findings and recommendations to the District Court. The
plaintiff filed this action pursuant to 28 U.S.C. §
1915, the in forma pauperis statute. This statute
authorizes the District Court to dismiss a case if it is
satisfied that the action “fails to state a claim on
which relief may be granted, ” is “frivolous or
malicious, ” or “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
pro se litigant, the plaintiff's pleadings are
accorded liberal construction and held to a less stringent
standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
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, 391 (4th Cir. 1990).
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.
underlying matter, the plaintiff names Alonzo Thompson, the
Chief of the Spartanburg Police Department, as the sole
defendant in this action. In the complaint, the plaintiff
appears to allege that the defendant is responsible for his
being shot on November 23, 2017, by Officer Stacy Smith of
the Spartanburg Police Department. The record reflects that
the plaintiff has already filed a lawsuit which is currently
pending before the court which arises out of the same
operative facts as the instant action. See Kershaw v.
Smith, C. A.No. 7:18-1079-BHH-KFM. The plaintiff seeks
complaint is filed pursuant to 42 U.S.C. § 1983, which
“‘is not itself a source of substantive
rights,' but merely provides ‘a method for
vindicating federal rights elsewhere conferred.'”
Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979)). A civil action under § 1983 “creates a
private right of action to vindicate violations of
‘rights, privileges, or immunities secured by the
Constitution and laws' of the United States.”
Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To
state a claim under § 1983, a plaintiff must allege two
essential elements: (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).
extent the plaintiff alleges the defendant is liable on a
theory of respondeat superior for the actions of another
police officer, that doctrine is generally inapplicable to
Section 1983 claims. See Polk Cnty. v. Dodson, 454
U.S. 312, 325 (1981) (“Section 1983 will not support a
claim based on a respondeat superior theory of
liability.”) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978)); Vinnedge v.
Gibbs, 550 F.2d 926, 928-29 (4th Cir. 1977) (doctrine of
respondeat superior has no application under § 1983).
to the extent, the plaintiff is attempting to set forth a
claim based on supervisory liability, he fails to state a
claim. To hold a supervisor liable for a constitutional
injury inflicted by a subordinate under § 1983, the
plaintiff must allege facts establishing the following
elements: (1) the supervisor had actual or constructive
knowledge that a subordinate was engaged in conduct that
posed “a pervasive and unreasonable risk” of
constitutional injury to people like the plaintiff; (2) the
supervisor's response was so inadequate as to constitute
deliberate indifference or tacit authorization of the
subordinate's conduct; and (3) there is an
“affirmative causal link” between the
supervisor's inaction and the plaintiff's
constitutional injury. Shaw v. Stroud, 13 F.3d 791,
799 (4th Cir.1994). In Randall v. Prince George's
County, the Fourth Circuit concluded that,
“[u]nder the first prong of Shaw, the conduct
engaged in by the supervisor's subordinates must be
‘pervasive,' meaning that the ‘conduct is
widespread, or at least has been used on several different
occasions.'” 302 F.3d 188, 206 (4th Cir. 2002)
(quoting Shaw, 13 F.3d at 799). The petitioner has
made no allegation that Officer Smith's conduct towards
him in this single incident is pervasive. Furthermore, in
establishing deliberate indifference under
Shaw's second prong, a plaintiff
“[o]rdinarily . . . cannot satisfy his burden of proof
by pointing to a single incident or isolated incidents . . .
for a supervisor cannot be expected . . . to guard against
the deliberate criminal acts of his properly trained
employees when he has no basis upon which to anticipate the
misconduct.” Id. (quoting Slakan ...