United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin, United States Magistrate Judge
matter is before the Court on a motion by Plaintiff under
Federal Rule of Civil Procedure 65 for a preliminary
injunction. [Doc. 118.] Pursuant to the provisions of 28
U.S.C. § 636(b)(1)(B) and Local Civil 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 to submit findings and recommendations to the
filed this pro se action on January 24, 2018. [Doc. 1.] He
filed a motion for preliminary injunction on January 10,
2019. [Doc. 118.] Defendants filed a response on January 23,
is an inmate incarcerated in the South Carolina Department of
Corrections (SCDC). He alleges he was the victim of an
incident of excessive force on June 28 or 29, 2017, at Broad
River Correctional Institution, where he was incarcerated.
[Docs. 1 at 5; 24.] His complaint requests money damages.
[Id. at 6.]
motion for preliminary injunction, Plaintiff
“[r]equest[s] that [h]e be placed on (STATEWIDE
PROTECTIVE CUSTODY).” [Doc. 118 at 1.] He claims that a
gang “has put a [h]it out on him and wishes him
[d]ead.” [Id.] He alleges he is currently
“[i]n a Restricted Housing Unit (RHU) on Protective
Custody.” [Id.] He contends that being put on
statewide protective custody would be less restrictive.
for a Cause of Action Under § 1983
1983 provides a private cause of action for plaintiffs
alleging constitutional violations by persons acting under
color of state law. Section 1983 provides, in relevant part,
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
any person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. To establish a claim under §
1983, a plaintiff must prove two elements: (1) that the
defendant “deprived [him] of a right secured by the
Constitution and laws of the United States” and (2)
that the defendant “deprived [him] of this
constitutional right under color of [State] statute,
ordinance, regulation, custom, or usage.” Mentavlos
v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation
and internal quotation marks omitted).
under-color-of-state-law element, which is equivalent to the
“state action” requirement under the Fourteenth
reflects judicial recognition of the fact that most rights
secured by the Constitution are protected only against
infringement by governments. This fundamental limitation on
the scope of constitutional guarantees preserves an area of
individual freedom by limiting the reach of federal law and
avoids imposing on the State, its agencies or officials,
responsibility for conduct for which they cannot fairly be
Id. at 310 (quoting Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.
1998)) (internal citations and quotation marks omitted).
Nevertheless, “the deed of an ostensibly private
organization or individual” may at times be treated
“as if a State has caused it to be performed.”
Brentwood Acad. v. Tenn. Secondary Sch. AthleticAss'n, 531 U.S. 288, 295 (2001). Specifically,
“state action may be found if, though only if, there is
such a ‘close nexus between the State and the
challenged action' that seemingly private behavior
‘may be fairly treated as that of the State
itself.'” Id. (quoting Jackson v.
Metro. Edison Co., 419 U.S. 345, 351 (1974)). State
action requires both an alleged constitutional deprivation
“caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the
State or by a person for whom the State is responsible,
” and that “the party charged with the
deprivation must be a person who may fairly be said to be a
state actor.” Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982). A determination of whether a private
party's allegedly ...