United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 20) recommending
that the Court dismiss with prejudice Plaintiffs amended
complaint, deny Plaintiffs motion for a preliminary
injunction and deny Plaintiffs motion for leave to proceed
in forma pauperis. For the reasons set forth below,
the Court adopts the R & R as the Order of the Court,
dismisses Plaintiffs amended complaint with prejudice, denies
Plaintiffs motion for a preliminary injunction and denies
Plaintiffs motion for leave to proceed in forma
is a pro se incarcerated person who brings this
action pursuant to 42 U.S.C. § 1983. At the time he
initiated this action, Plaintiff was incarcerated at the
Kirkland Correctional Institutional ("KCI") of the
South Carolina Department of Corrections ("SCDC")
and is now incarcerated at the Broad River Correctional
Institution. Plaintiff amended his complaint, although the
amended complaint asserts substantially the same allegations.
Plaintiff also moves for a preliminary injunction, which
appears to seek that he be moved back to KCI to resume cancer
treatment. (Dkt. No. 15 at 1.)
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
specific objections to the R & R, the Court "makes a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." Id. Where there are
no objections to the R & R, the Court reviews the R &
R to "only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) ("In the absence of
objection ... we do not believe that it requires any
Plaintiffs Amended Complaint (Dkt. No. 22) is Dismissed with
careful review of the R & R and Plaintiffs Objections
(Dkt. No. 27), the Court finds that the Magistrate Judge
thoroughly addressed the issues and correctly concluded that
Plaintiffs amended complaint, accorded an appropriately
liberal construction for a pro se litigant, should
be denied with prejudice.
initial matter, this action is subject to sua sponte
dismissal pursuant to Rule 41 of the Federal Rules of Civil
Procedure for Plaintiffs failure to comply with the Proper
Form Order (Dkt. No. 9). See Fed. R. Civ. P. 41(b)
("If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss
the action or any claim against it."); Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) ("The
authority of a court to dismiss sua sponte for lack
of prosecution has generally been considered an 'inherent
power, '. . ."); Bollard v. Carlson, 882
F.2d 93, 95-96 (4th Cir. 1989) (district court's
dismissal following failure to respond to a specific
directive is not abuse of discretion).
amended complaint is also subject to dismissal on the merits.
First, Plaintiff requests that the Court "enforce"
the ruling of Frew v. Hawkins, 540 U.S. 431 (2004)
to reinstate the so-called Nelson consent decree,
which concerned prison conditions at SCDC facilities and was
entered in Plyler v. Leeke, No. 82-cv-876, 1986 WL
84459 (D.S.C. Mar. 26, 1986). As the Magistrate Judge noted,
the Nelson consent decree was terminated in June
1996, which was affirmed by the United States Court of
Appeals for the Fourth Circuit, Plyler v. Moore, 100
F.3d 365 (4th Cir. 1996), and the Court lacks the authority
or jurisdiction to enforce a terminated prison consent
decree. Plaintiff next makes various allegations as to
conditions at SCDC facilities other than where he was housed
and that relate to other inmates. These claims are subject to
dismissal because a pro se incarcerated person may
not seek redress on behalf of other inmates. Hummer v.
Dalton, 657 F.2d 621, 625-26 (4th Cir. 1975).
next alleges that Defendant Stirling, Director of SCDC,
violated his civil rights by accepting him as an inmate
without proper commitment papers. This is a challenge to the
fact or duration of Plaintiff s confinement, which may not be
brought pursuant to 42 U.S.C. § 1983 because a writ of
habeas corpus is the sole mechanism for relief. Heck v.
Humphrey, 512 U.S. 477, 481 (1994). Moreover,
"there is simply no evidence, other than Plaintiffs
say-so, that he is being improperly detained" without
proper commitment papers. Johnson v. Ozmint, 567
F.Supp.2d 806, 813 (D.S.C. June 20, 2008) (Duffy, J.).
Plaintiff similarly asserts that Defendant Stirling conspired
with state judicial personnel, who are not defendants in this
action, to violate Plaintiffs civil rights, but the amended
complaint, given an appropriately liberal construction, fails
to allege facts beyond mere "speculation and
conjecture" of an agreement to violate Plaintiffs
rights. Hinkle v. City of Clarksburg, 81 F.3d 416,
421-22 (4th Cir. 1996). Moreover, as employees of the SCDC sued
in their official capacities, Defendants are entitled to
Eleventh Amendment immunity from suit for monetary damages.
Alden v. Maine, 527 U.S. 706 (1999).
Court carefully considered Plaintiffs Objections and finds
they are without merit. For these reasons, Plaintiffs amended
complaint is dismissed with prejudice.
Plaintiffs Motion for a Preliminary Injunction (Dkt. ...