United States District Court, D. South Carolina
REPORT AND RECOMENDATION
Kaymani D. West, United States Magistrate Judge
LeVar Smith (“Plaintiff”), proceeding pro se and
in forma pauperis, filed this complaint alleging his civil
rights were violated while he was incarcerated at Anderson
County Detention Center (“ACDC”). Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized
to review such complaints for relief and submit findings and
recommendations to the district judge. For the reasons that
follow, the undersigned recommends the district judge dismiss
Factual and Procedural Background
Plaintiff alleges he was arrested on June 18, 2018. ECF No. 1
at 3. Plaintiff states the
[n]ext day after I wrote by Kiosk request to see
staff/medical for the urine burning feeling/open pink areas
(sores) open flesh spots the size of (b-bs) or the open to
eyes of RN. Amber B. Brown, R.N. Katherine Morris, R.N.
Kerri, and officer Reed, a male officer in the nurse station
on shift. To secure the female R.N. nurse team.
Something we do not treat, or want to be responsible for is
an trip to DHEC Said, by Nurse Team. Southern Health Partners
don't hold us responsible for whoever gave you a STD, and
we are not able to track down who gave you a STD.
Id. (errors in original). Plaintiff claims he also
requested to see mental health as he was “very sad,
” but he was denied treatment. Id. Plaintiff
also claims he asked to be moved to a “population
cell” so he could have access to the telephone.
Id. Plaintiff alleges other inmates who asked to be
moved were moved two days to a week later, but he sat in C
Pod for 10 months. Id. Plaintiff seeks monetary
damages. Id. at 4.
August 23, 2019, the court issued an order notifying
Plaintiff that his Complaint was subject to summary dismissal
because he failed to allege sufficient factual allegations to
state a claim. ECF No. 9. The order further advised Plaintiff
that he had 21 days to file an amended complaint or otherwise
cure the identified deficiencies in his pleadings.
Id. Plaintiff did not file a response.
Standard of Review
filed his complaint pursuant to 28 U.S.C. § 1915, which
permits an indigent litigant to commence an action in federal
court without prepaying the administrative costs of
proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss a case upon a finding that the action fails to
state a claim on which relief may be granted or is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A
finding of frivolity can be made where the complaint lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992). A claim based on a
meritless legal theory may be dismissed sua sponte
under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean the court can ignore a clear failure in the
pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.