United States District Court, D. South Carolina, Florence Division
ORDER AND NOTICE
V. Hodges United States Magistrate Judge.
Murphy (“Plaintiff”), proceeding pro se and in
forma pauperis, filed this complaint against Myrtle Beach
Police Department alleging a violation of his constitutional
rights. 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
alleges a search warrant was issued for Room 1057 at Compass
Cove Resort in Myrtle Beach, South Carolina on January 15,
2019. [ECF No. 1 at 5]. Plaintiff claims Myrtle Beach police
officers rammed the door and took him down although he had
his hands up to surrender. Id. Plaintiff contends
the officers used excessive force, leaving him with a pinched
nerve and pain in his right arm, hand, and foot. Id.
Plaintiff seeks monetary damages and injunctive relief.
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 that 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.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (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 this case, Plaintiff names Myrtle
Beach Police Department/Task Force as the sole defendant.
However, this defendant is not a “person” subject
to suit under § 1983. A police department or task force
is a group of officers or buildings that is not considered a
legal entity subject to suit. See Harden v. Green,
27 Fed.Appx. 173, 178 (4th Cir. 2001) (finding that the
medical department of a prison is not a person pursuant to
§ 1983); see also Post v. City of Fort
Lauderdale, 750 F.Supp. 1131 (S.D. Fla. 1990)
(dismissing city police department as improper defendant in
§ 1983 action because not “person” under the
statute); Shelby v. City of Atlanta, 578 F.Supp.
1368, 1370 (N.D.Ga. 1984) (dismissing police department as
party defendant because it was merely a vehicle through which
city government fulfills policing functions). Accordingly,
Plaintiffs complaint is subject to summary dismissal.
may attempt to correct the defects in his complaint by filing
an amended complaint by March 26, 2019, along with any
appropriate service documents. Plaintiff is reminded that an
amended complaint replaces the original complaint and should
be complete in itself. See Young v. City of Mount
Ranier,238 F.3d 567, 572 (4th Cir. 2001) (“As a
general rule, an amended pleading ordinarily supersedes the
original and renders it of no legal effect.”) (citation
and internal quotation marks omitted). If Plaintiff files an
amended complaint, the undersigned will conduct screening of
the amended complaint pursuant to 28 U.S.C. § 1915A. ...