United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
action has been filed by the Plaintiff, pro se, pursuant to
42 U.S.C. § 1983. Plaintiff, an inmate with the South
Carolina Department of Corrections (SCDC), alleges violations
of his constitutional rights by the named Defendant.
Defendant has filed a motion to dismiss pursuant to Rule 12,
Fed.R.Civ.P., arguing that Plaintiff has failed to set forth
sufficient facts to state a plausible claim for relief.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). As
the Plaintiff is proceeding pro se, a Roseboro order
was entered advising Plaintiff of the importance of a
dispositive motion and of the need for him to file an
adequate response. Plaintiff was specifically advised that if
he failed to adequately respond, the Defendant's motion
may be granted, thereby ending his case. Plaintiff thereafter
filed a response in opposition to the Defendant's motion,
which is now before the Court for disposition.
alleges in his Complaint that while he was housed at the
Lieber Correctional Institution he “participated in . . .
1st Amendment protected activity [by using the]
grievance system”, after which the Defendant unlawfully
retaliated against him in violation of his First Amendment
rights. Plaintiff alleges that on or about July 18 or 20,
2008, the Defendant began retaliating against him by
transferring him and placing him in the “worse”
unit (Cooper (B) unit), where he ended up being stabbed by
another inmate, and also by terminating him from his prison
job. Plaintiff requests monetary damages. See generally,
considering a Rule 12 motion to dismiss, the Court is
required to accept the allegations in the pleading as true,
and draw all reasonable factual inferences in favor of the
Plaintiff. The motion can be granted only if the Plaintiff
has failed to set forth sufficient factual matters to state a
plausible claim for relief “on its face”.
Iqbal, 129 S.Ct. at 1949. Additionally, the Federal
Court is also charged with liberally construing a complaint
filed by a pro se litigant to allow for the development of a
potentially meritorious case. See Cruz v. Beto, 405
U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519
(1972). As such, the only question before the Court at this
time is whether Plaintiff's factual allegations
(liberally construed), and any reasonable inferences which
may be drawn therefrom, are sufficient to state a
“plausible” claim that the Defendant violated
Plaintiff's constitutional rights. Iqbal, 129
S.Ct. At 1949. After careful review and consideration of
Plaintiff's allegations along with his arguments filed in
opposition to the Defendant's motion, the undersigned
concludes that Plaintiff has set forth facts sufficient to
establish a “plausible claim for relief” to avoid
dismissal of his claim at this time. See Slade v. Hampton
Roads Regional Jail, 407 F.3d 243, 248 (4th Cir.
2005)[“Courts should not dismiss a complaint for
failure to state a claim unless ‘after accepting all
well-pleaded allegations in the Plaintiff's favor, it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim entitling him to
relief'”], citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
correctional officer, the Defendant is subject to suit for
damages in his individual capacity under § 1983 if he is
found to have violated Plaintiff's constitutional rights.
Gomez v. Toledo, 446 U.S. 635, 640 (1980);
Inmates v. Owens, 561 F.2d 560 (4th Cir.
1977). To state a First Amendment retaliation claim under
§ 1983, a plaintiff must show that: “(1) his
speech was protected, (2) the alleged retaliatory action
adversely affected his protected speech, and (3) a causal
relationship between the protected speech and the
retaliation.” Raub v. Campbell, 785 F.3d 876,
885 (4th Cir. 2015) (internal quotation marks omitted).
Plaintiff has alleged that he engaged in protected speech by
filing a grievance. Booker v. South Carolina Department
of Corrections, 855 F.3d 533, 545(4th Cir. 2017)
[Prisoners have a clearly established First Amendment right
“to file a prison grievance free from
retaliation.”]. Plaintiff has also alleged that as a
result of his having filed a grievance, the Defendant
retaliated against him by transferring him to a worse Unit in
the prison and by having him terminated from his prison job.
These allegations state the elements of a First Amendment
Plaintiff has set forth his allegations in a “bare
boned” manner. However, “Courts are obligated to
liberally construe pro se complaints, however inartfully
pleaded”. Booker, 866 F.3d at 540 (internal
quotations omitted); see also Erickson v. Pardus,
551 U.S. 89, 94 (2007).Moreover, although claims of retaliation
by prisoners should “be regarded with skepticism, lest
Federal Courts embroil themselves in every disciplinary act
that occurs in [ ] penal institutions”; Adams v.
Rice, 40 F.3d 72, 74 (4th Cir. 1994); this
case is not before the Court on a motion for summary
judgment, where there would be evidence to consider as to
whether a genuine issue of fact is presented. Rather, as
noted, this matter is before the Court only on a Rule 12
motion to dismiss, under which the standard for dismissal is
much more narrow. See Austen v. Catterton Partners V,
LP, 709 F.Supp.2d 172 (D.Conn. 2010)
[Iqbal's plausibility standard “does not
impose a probability requirement at the pleading stage; it
simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of illegal
[conduct]]; and, of course, a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote
and unlikely”]; citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citations omitted); see also Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir.
2002)[“[W]hen [dismissal for failure to state a claim]
involves a civil rights complaint, ‘we must be
especially solicitous of the wrongs alleged' and
‘must not dismiss the complaint unless it appears to a
certainty the plaintiff would not be entitled to relief under
any legal theory which might plausibly be suggested by the
facts alleged'”], citing Harrison v. United
Postal Service, 840 F.2d 1149, 1152 (4th Cir. 1988).
considered under the standards for a Rule 12 motion to
dismiss, and liberally construing Plaintiff's pro se
allegations in order to allow for the development of a
potentially meritorious case, the undersigned does not find
that Plaintiff's First Amendment retaliation claim should
be dismissed at this early stage of the proceedings. Cf.
Slade, 407 F.3d at 248 [“Courts should not dismiss
a complaint for failure to state a claim unless ‘after
accepting all well-pleaded allegations in the Plaintiff's
favor, it appears certain that the plaintiff cannot prove any
set of facts in support of his claim entitling him to
relief'”]; see also Vogt v. Greenmarine
Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004)
[Finding that Plaintiffs had asserted sufficient facts to
allege improper conduct by the named defendants, and that
“[w]hether plaintiffs will be able to demonstrate the
truth of those facts after discovery is an entirely different
question, but plaintiffs are entitled to make the
attempt”]; Booker, 855 F.3d at 545 [Claim of
retaliation for filing a prison grievance states a First
Amendment claim]; Sprouse v. Babcock, 870 F.2d 450,
452 (8th Cir. 1989).
on the foregoing, it is recommended that the Defendant's
motion to dismiss be denied at this time for the reasons
parties are referred to the Notice Page attached hereto.
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