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Jones v. T. Ervin

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

May 24, 2019

Elijah Gaylon Jones, Plaintiff,
T. Ervin, Mental Health Counselor, Marie Livingston, Mental Health Care Manager; Matthew Rotan, Corporal; John Crane, Sergeant; Raymond Goins, S.H. U.Sergeant; Mark Fleming, Sergeant; Delhm Campagna, Lieutenant; R. Hollister, Deputy Director; J. Vandermosten, Director; and Greenville County, Defendants.


          Richard Mark Gergel United States District Court Judge

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 18) recommending the Court dismiss the Complaint in part. For the reasons set forth below, the Court adopts the R & R as the order of the Court and the Court dismisses the Complaint in part.

         I. Background

         Plaintiff Elijah Gaylon Jones is an inmate at the Greenville County Detention Center and alleges that a mental health counselor at the jail, Defendant T. Ervin, retaliated against him by placing him in solitary confinement shortly after he filed a grievance. (Dkt. No. 1-1 at 4.) Plaintiff alleges that Ervin's supervisor, Defendant Livingston, participated in the conduct. (Id.) Plaintiff also alleges that the Defendant officers at the jail were deliberately indifferent to Plaintiffs constitutional rights because they failed to investigate the retaliation. (Id. at 4 - 5.) Plaintiff alleges that Defendant Vandermosten and Hollister, the jail's director and deputy director, also ignored his claims and failed to properly train the staff. (Id. at 5 - 6.) Finally, Plaintiff alleges Defendant Greenville County has a custom of ignoring retaliation claims and inadequate training. (Id.)

         On March 4, 2019, the Magistrate Judge issued a proper form order informing Plaintiff that certain portions of his Complaint were subject to dismissal for failure to state a claim and gave Plaintiff twenty-one days to file an amended Complaint or risk dismissal. (Dkt. No. 6.) Plaintiff did not file an amended complaint and on April 30, 2019, the Magistrate Judge issued an R & R which recommended, upon screening the Complaint, dismissing the deficient portions of the Complaint. (Dkt. No. 18.) Plaintiff has not filed objections.

         II. Legal Standard

         A. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See 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). This Court must make a de novo determination of those portions of the R & R Plaintiff specifically objects. Fed.R.Civ.P. 72(b)(2). Where Plaintiff fails to file any specific objections, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilson v. S.C Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Plaintiff did not file objections in this case, and the R & R is reviewed for clear error.

         B. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep 't of Social Services, 901 F.2d 387 (4th Cir. 1990).

         C. Failure to State a Claim

         Under 28 U.S.C. § 1915A, the Court is required to screen prisoner complaints and must dismiss any complaint, or portions of complaints that are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted[, ]" or seek relief from a defendant immune from such relief. The same standard applies to complaints filed by a plaintiff proceeding in forma pauperis. 28 U.S.C.A. § 1915(e)(2). To state a claim, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a complaint, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         III. Discussion

         Plaintiff states plausible retaliation claims against Defendants Ervin and Livingston. See Booker v. S.C. Dep't of Corr,855 F.3d 533, 540 (4th Cir. 2017). However, as the Magistrate Judge ably held, Plaintiff has failed to state any valid claims against the Defendant officers Rotan, Crane, Goins, Fleming or Campagna. The allegations, that Plaintiff informed them of the retaliation and they allegedly ignored him and failed to investigate, do not make out a § 1983 claim. See Mays v. Smith, No. 5:18-CT-3186-FL, 2019 WL 958401, at *4 (E.D. N.C. Feb. 27, 2019) (failure to report allegedly retaliatory conduct or to investigate grievance does not make out ยง 1983 claim). They similarly cannot be held liable as bystanders as ...

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