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Johnson v. Stirling

United States District Court, D. South Carolina, Charleston Division

April 10, 2019

Willie Johnson, Plaintiff,
v.
Bryan P. Stirling, West Price, Sgt. A. Hudson, Sgt. Story, Sgt. Wright, Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         Before 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 pauperis.

         I. Background

         Plaintiff 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.)

         II. Legal Standard

         The 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 explanation.").

         III. Discussion

         A. Plaintiffs Amended Complaint (Dkt. No. 22) is Dismissed with Prejudice.

         After 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.[1]

         As an 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).

         Plaintiffs 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).

         Plaintiff 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).[2] 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).

         The Court carefully considered Plaintiffs Objections and finds they are without merit. For these reasons, Plaintiffs amended complaint is dismissed with prejudice.

         B. Plaintiffs Motion for a Preliminary Injunction (Dkt. ...


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