United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge
Rogers (“Plaintiff”), proceeding pro se, is an
inmate incarcerated at Turbeville Correctional Institution in
the custody of the South Carolina Department of Corrections
(“SCDC”). He filed this complaint alleging a
violation of his constitutional rights by SCDC. Pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civ. Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is
authorized to review such complaints for relief and submit
findings and recommendations to the district judge. For the
reasons that follow, the undersigned recommends the district
judge dismiss the complaint with prejudice.
Factual and Procedural Background
claims inmates attacked him in January 2018, breaking his leg
and chipping his eye socket. [ECF No. 1 at 6]. He alleges
SCDC correctional officers were not on the cellblock when he
was attacked. Id. He states two of the inmates who
attacked him were arrested and have pending criminal charges
against them for the incident. Id. at 8. Plaintiff
seeks monetary damages. Id. at 6.
January 14, 2019, the court issued an order notifying
Plaintiff that his complaint was subject to summary dismissal
because he failed to allege sufficient factual allegations to
state a claim. [ECF No. 18]. The order further advised
Plaintiff that he had fourteen days within which to file an
amended complaint or otherwise cure the identified
deficiencies in his pleadings. Id. Plaintiff did not
file a response.
Discussion A. Standard of Review
filed his complaint 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. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss a case upon a finding that the action fails to
state a claim on which relief may be granted or is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A
finding of frivolity can be made where the complaint lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992). A claim based on a
meritless legal theory may be dismissed sua sponte
under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean the court can ignore a clear failure in the
pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
Eleventh Amendment bars suits by citizens against
non-consenting states brought either in state or federal
court. See Alden v. Maine, 527 U.S. 706,
712‒13 (1999); Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 54 (1996). Such immunity extends
to arms of the state, including a state's agencies,
instrumentalities, and employees. See Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71 (1989). The
Eleventh Amendment also bars this court from granting
injunctive relief against the state or its agencies. See
Alabama v. Pugh, 438 U.S. 781 (1978); Seminole Tribe
of Florida, 517 U.S. at 58. While sovereign immunity
does not bar suit where a state has given consent to be sued,
or where Congress abrogates the sovereign immunity of a
state, neither of those exceptions applies in the instant
case. As a state agency, SCDC is immune from
Plaintiff's claims for damages or injunctive relief, and
the undersigned recommends SCDC be summarily dismissed from
Conclusion and Recommendation
order issued on January 14, 2019, the undersigned provided
Plaintiff an opportunity to correct the defects identified in
his complaint and further warned Plaintiff that if he failed
to timely file an amended complaint or failed to cure the
identified deficiencies, the undersigned would recommend to
the district court that the action be dismissed without leave
for further amendment. Plaintiff failed to file an amended
complaint within the time provided. The undersigned
recommends the district court dismiss this action with
prejudice. See Goode v. Cent. Va. Legal Aid Soc'y,
Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
parties are directed to note the important information in the
attached “Notice of Right to File Objections ...