Browning v. McGowan

          ORDER REGARDING AMENDMENT OF COMPLAINT

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         The plaintiff, David Browning, a self-represented state pretrial detainee, brings this civil rights action.^[1] 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.). By order dated December 5, 2018, the court identified deficiencies in Plaintiff's Complaint that will subject the case to summary dismissal. (ECF No. 12.) In response, Plaintiff filed an Amended Complaint. (ECF No. 14.) However, having reviewed the Amended Complaint in accordance with applicable law, the court finds this action is still subject to summary dismissal if Plaintiff does not amend the Amended Complaint to cure the deficiencies identified herein.

         I. Factual and Procedural Background

         In the original complaint Plaintiff, an inmate at the Union County Detention Center, alleged that his jail cell was infested with bugs that bit him in his sleep. (Compl., ECF No. 1 at 6.) He alleged that he was bitten in the face by bugs on the night of April 29, 2018, causing an infection. (Id. at 6, 13.) He alleged the infection went untreated, and eventually led to a total loss of hearing and migraines. (Id. at 6.) Plaintiff indicated that he brought 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.)

         In the Amended Complaint, Plaintiff again alleges bugs bit him while he was sleeping, causing him injury. (Am. Compl., ECF No. 14 at 5-6.) He claims he told Officer Littleton about the bite and, while Littleton said Plaintiff should go to the hospital, the “officer in charge” said no. (Id. at 6.) Plaintiff does not identify the officer in charge. Plaintiff also alleges that he has received antibiotics from a nurse but they are not helping. (Id.) Plaintiff claims he needs a different form of medical treatment. (Id.) Plaintiff expressly raises claims pursuant to 42 U.S.C. § 1983 for pain and suffering, cruel and unusual punishment, poor living conditions, and over-crowding.^[2] (Id. at 4.)

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se Amended 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 Amended 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).

         In 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.

         This 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 actions”).

         B. Analysis

         The court finds Plaintiff's case is still subject to summary dismissal for failure to state a claim if he does not amend the Amended Complaint, for the same reasons the court found the original complaint was deficient. 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).

         In the Amended Complaint, 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. 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).

         Consequently, the Amended 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 a second amended complaint pursuant to Federal Rule of Civil Procedure 15(a) that corrects the deficiencies identified above.^[3] In a contemporaneously issued order, the court has again provided Plaintiff with instructions to bring this case into proper form for initial review and the issuance and service of process. If Plaintiff fails to file an amended complaint that corrects those deficiencies, this action will be recommended for summary dismissal with prejudice pursuant to 28 U.S.C. § 1915 and § 1915A. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to “in its discretion, ...