United States District Court, D. South Carolina
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.). 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.
Factual and Procedural Background
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.)
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. (Id. at 4.)
Standard of Review
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).
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 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).
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
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. 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, ...