United States District Court, D. South Carolina, Charleston Division
David B. Harrell, Jr., # 260004, Plaintiff,
Bryan Stirling and Martin Frink, Defendants.
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
a civil action under 42 U.S.C. § 1983. Plaintiff David
Harrell is a state prisoner representing himself and
proceeding in forma pauperis. Under Local Civil Rule
73.02(B)(2) (D.S.C.), the undersigned is authorized to review
the complaint and to submit a recommendation to the United
States District Judge. For the following reasons, the
undersigned recommends the complaint be summarily dismissed,
is a South Carolina state prisoner. Defendant Brian Stirling
is the director of the South Carolina Department of
Corrections. Defendant Martin Frink is the warden of a prison
last year, Harrell was confined in a state-run prison in
South Carolina. (Dkt. No. 1-1 at 1.) Last December, however,
he was transferred to Frink's prison in Mississippi.
(Id. at 5.) Harrell alleges he was transferred
without any notice, hearing, or explanation. (Id. at
5, 11-12.) He further alleges he was targeted for transfer
because he is black. According to Harrell, he is one of
forty-eight prisoners transferred to Mississippi; forty-five
are black, and only three are white. (Id. at 15.)
Twenty-seven are black inmates from maximum-security prisons;
none are white maximum-security prisoners. (Id.)
Harrell also alleges that, by being transferred, he has been
denied opportunities to participate in character-based units
and to receive the benefits that come with participating in
those units. (Id. at 14.) Finally, he alleges that
his long-distance transfer has made it hard for people to
visit him, making his transfer a “de facto
elimination” of visitation rights. (Id. at
asserts he has been denied due process, equal protection, and
access to the courts. (Dkt. No. 1 at 4.) He bases his claims
the First, Sixth, Eighth, Tenth, Twelfth, and Fourteenth
Amendments, as well as South Carolina law and South Carolina
Department of Corrections policies. (Dkt. No. 1-1 at 2.) He
seeks damages, an injunction, and a declaratory judgment.
commenced this case in June 2019 by filing his complaint
along with one from another prisoner, Warren Russell. (Dkt.
No. 1.) After the Court severed Russell's claims from the
case (Dkt. No. 8), the undersigned issued an order notifying
Harrell that portions of his complaint were subject to
summary dismissal for failure to state a claim. (Dkt. No.
12.) The undersigned provided Harrell an opportunity to amend
his complaint and notified him that, if he did not cure the
defects in his complaint, she would recommend it be partially
summarily dismissed. (Id. at 4.)
of changing the allegations in his complaint, Harrell has
resubmitted it. (Dkt. No. 19.) Harrell has also submitted a
letter saying he disagrees with the undersigned's
assessment of “what claims are subject to summary
Judgement.” (Dkt. No. 18 at 1.) This case is therefore
ripe for initial screening.
granting of in forma pauperis status in a case
triggers a district court's duty to “sift out
claims that Congress found not to warrant extended judicial
treatment.” Nagy v. FMC Butner, 376 F.3d 252,
256 (4th Cir. 2004). The Court must dismiss any cases that
are frivolous or malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. §
1915(e)(2)(B). Those same criteria are grounds for dismissing
a case filed by a prisoner. 28 U.S.C. § 1915A(b).
failure to state a claim, a complaint filed in federal court
“‘must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court
need not, however, accept as true a complaint's legal
conclusions. Id. When “it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations, ” Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984), the
complaint fails to state a claim.
Harrell is pro se, the undersigned has screened the
complaint liberally and considered whether it includes any
potential grounds for relief. See, e.g.,
Erickson v. Pardus, 551 U.S. 89, 94 (2007). That
does not mean, however, the Court can ignore a clear failure
to allege facts that set forth a cognizable claim.