United States District Court, D. South Carolina, Rock Hill Division
ORDER REGARDING AMENDMENT OF COMPLAINT
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
plaintiff, David Browning, a self-represented state pretrial
detainee, brings this civil rights action. Plaintiff files
this Complaint pursuant to 28 U.S.C. § 1915 and §
1915A. This matter is before the court pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.).
Having reviewed the Complaint as it pertains to Plaintiff
David Browning, in accordance with applicable law, the court
finds this action is subject to summary dismissal if
Plaintiff does not amend the Complaint to cure the
deficiencies identified herein.
Factual and Procedural Background
an inmate at the Union County Detention Center, brings this
action alleging that his jail cell is infested with bugs that
bite him in his sleep. (Compl., ECF No. 1 at 6.) He alleges
that he was bitten in the face by bugs on the night of April
29, 2018, causing an infection. (Id. at 6, 13.) He
alleges the infection went untreated, and eventually led to a
total loss of hearing and migraines. (Id. at 6.)
Plaintiff brings these claims pursuant to 42 U.S.C. §
1983 for damages, based on the defendants' purported
“medical negligence” and failure to ensure safe
living conditions. (Id. at 14.)
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se Complaint
pursuant to the procedural provisions of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, 110 Stat. 1321 (1996), including 28 U.S.C. §
1915 and 28 U.S.C. § 1915A. The Complaint has been filed
pursuant to 28 U.S.C. § 1915, which permits an indigent
litigant to commence an action in federal court without
prepaying the administrative costs of proceeding with the
lawsuit, and is also governed by 28 U.S.C. § 1915A,
which requires the court to review a complaint filed by a
prisoner that seeks redress from a governmental entity or
officer or employee of a governmental entity. See McLean
v. United States, 566 F.3d 391 (4th Cir. 2009). Section
1915A requires, and § 1915 allows, a district court to
dismiss the case upon a finding that the action is frivolous,
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28
U.S.C. § 1915A(b).
order to state a claim upon which relief can be granted, the
plaintiff must do more than make mere conclusory statements
to state a claim. 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.
court is required to liberally construe pro se
complaints, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016). Nonetheless, 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, 684 (2009) (outlining pleading requirements under Rule 8
of the Federal Rules of Civil Procedure for “all civil
court finds Plaintiff's case is subject to summary
dismissal for failure to state a claim if he does not amend
his Complaint. A legal action under 42 U.S.C. § 1983
allows “a party who has been deprived of a federal
right under the color of state law to seek relief.”
City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687, 707 (1999). To state a claim under
§ 1983, a plaintiff must allege: (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).
here, Plaintiff fails to allege any facts about the named
defendants that would show that they had any involvement in
the purported unsafe living conditions and lack of medical
care that Plaintiff alleges in the Complaint. See
Iqbal, 556 U.S. at 676 (providing that a plaintiff in a
§ 1983 action must plead that the defendant, through his
own individual actions, violated the Constitution);
Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)
(“In order for an individual to be liable under §
1983, it must be ‘affirmatively shown that the official
charged acted personally in the deprivation of the
plaintiff's rights. The doctrine of respondeat
superior has no application under this section.'
”) (quoting Vinnedge v. Gibbs, 550 F.2d 926,
928 (4th Cir. 1977)). Because Plaintiff does not explain how
the named defendants were involved in the purported violation
of Plaintiff's rights, Plaintiff fails to meet the
federal pleading standards. See Fed.R.Civ.P. 8
(requiring that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief”); Iqbal, 556 U.S. at 678 (stating
Federal Rule of Civil Procedure 8 does not require detailed
factual allegations, but it requires more than a plain
accusation that the defendant unlawfully harmed the
plaintiff, devoid of factual support).
to the extent that Plaintiff seeks to raise claims of
negligence or medical malpractice, they are not actionable
under § 1983. See Ruefly v. Landon, 825 F.2d
792, 793-94 (4th Cir. 1987) (stating negligent conduct cannot
support a claim for a violation of the Eight Amendment's
Cruel and Unusual Punishment Clause); Gregory v. Prison
Health Servs., Inc., 247 Fed.Appx. 433, 435 (4th Cir.
2007) (unpublished) (finding allegations of negligence,
medical malpractice, and disagreement with medical treatment
is not sufficient to state a claim for relief for deliberate
indifference under § 1983); see also Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (“Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.”). Moreover, if
Plaintiff is attempting to bring a state law claim for
negligence or medical malpractice, in South Carolina, a
plaintiff must file “as part of the complaint an
affidavit of an expert witness which must specify at least
one negligent act or omission claimed to exist and the
factual basis for each claim . . . .” S.C. Code Ann.
§ 15-36-100(B). A plaintiff's “failure to file
such an affidavit with the Complaint requires dismissal of
the case in state court.” Allen v. United
States, C/A No. 2:13-2740-RMG, 2015 WL 1517510, at *6
(D.S.C. Apr.1, 2015) (adopting the report and recommendation
as the order of the court) (citing Rotureau v.
Chaplin, C/A No. 2:09-1388-DCN, 2009 WL 5195968, at *6
(D.S.C. Dec. 21, 2009)). Here, Plaintiff has not provided an
affidavit of an expert witness as part of the Complaint.
Thus, Plaintiff's medical malpractice claim would be
subject to summary dismissal.
Plaintiff's Complaint is subject to summary dismissal
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and §
1915A(b)(1) for failure to state a claim upon which relief
can be granted. Plaintiff is hereby granted
twenty-one (21) days from the date this
order is entered (plus three days for mail time) to file an
amended complaint pursuant to Federal Rule
of Civil Procedure 15(a) that corrects the deficiencies
identified above. In a contemporaneously issued order, the
court has provided Plaintiff with instructions to bring this
case into proper form for initial review and the issuance and
service of process. In that order are instructions to fill
out the standard pro se prisoner complaint form
attached to the order. Plaintiff may use the attached
complaint form to correct the deficiencies ...