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Johnson v. Stirling

United States District Court, D. South Carolina

September 12, 2019

Willie Johnson, Plaintiff,
v.
Bryan P. Stirling; West Price; Sgt. A. Hudson; Sgt. Wright; Emily A. Fair; Dr. Rick Toomey, Director of DHEC; Elizabeth Simmons; Dr. Stacy Smith; Lt. Kimberly Story; Defendants.

          REPORT AND RECOMMENDATION (PARTIAL SUMMARY DISMISSAL)

          Bristow Marchant United States Magistrate Judge

         The Plaintiff, Willie Johnson, proceeding pro se and in forma pauperis. brings this action pursuant to 42 U.S.C. § 1983. At the time he filed this action he was an inmate at the Kirkland Correctional Institution (KCI), part of the South Carolina Department of Corrections (SCDC). He is currently incarcerated at the Broad River Correctional Institution (BRCI) of the SCDC.

         Under established local procedure in this judicial district, a careful review has been made of the pro se Second Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915 A, the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden-Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th A Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Com, v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980).

         However, even when considered pursuant to this liberal standard, for the reasons set forth herein below, some of the claims presented in this case are subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990): see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].

         Discussion

         In an order entered February 11, 2019, Plaintiff was given notice of pleading deficiencies and provided an opportunity to amend his complaint. ECF No. 9. On March 19, 2019, Plaintiff filed his First Amended Complaint, in which he generally reiterated the same claims he had in his original Complaint, added claims concerning incidents that occurred after the filing of this lawsuit, and added various other vague allegations. ECF 22, see also ECF Nos. 14, 16, 19. The undersigned then recommended that this action be summarily dismissed, and the Honorable Richard M. Gergel, United State District Judge, adopted the report and recommendation and dismissed the First Amended Complaint. ECF Nos. 21 and 29. Thereafter, in consideration of Plaintiff s motion for reconsideration, his filing of a motion to file a second amended complaint, and his submission of paperwork to bring his case into proper form, Judge Gergel granted Plaintiffs motion to reconsider, vacated the prior dismissal of the First Amended Complaint, and referred the case back to the undersigned for initial review on the proposed Second Amended Complaint. ECF No. 35. Plaintiff also filed an appeal to the Fourth Circuit Court of Appeals, which was denied, and the case was remanded to the district court because the case remained ongoing. ECF Nos. 39, 44. Another order directing Plaintiff to bring his case into proper form was then issued on July 3, 2019 (ECF No. 46), and Plaintiff has now provided the necessary documents to bring this case into substantially proper form.

         In his Second Amended Complaint (ECF No. 47), Plaintiff names as Defendants Bryan P. Stirling, the Director of SCDC; Emily A. Fair, Director of the South Carolina Department of Labor, Licensing, and Regulation; SCEC employees West Price, Elizabeth Simmons, Lt. Kimberly Story, Sgt. Wright, Sgt. A Hudson, and Dr. Stacy Smith; and Dr. Rick Toomey, Director of the South Carolina Department of Health and Environmental Control (DHEC).[1] Plaintiff asserts claims for a civil rights conspiracy pursuant to 42 U.S.C. §§ 1983 and 1985, denial of due process and equal protection, deliberate indifference to a serious medical need, violation of procedural due process as to the filing of grievances, and placement in unsafe conditions of confinement. Plaintiff requests that the court issue a declaratory judgment and award compensatory and punitive damages. ECF No. 47 at 19.

         1. Civil Rights Conspiracy

         In his first cause of action in his Second Amended Complaint, Plaintiff alleges that Defendants Fair, Smith, Toomey, and Simmons violated his rights under 42 U.S.C. § 1985 because they conspired to allow SCDC to use EMT Defendant West as a nurse at SCDC when West was not licensed as a nurse as required by South Carolina law and SCDC policy. In his second cause of action titled denial of due process, Plaintiff also alleges a civil rights conspiracy pursuant to 42 U.S.C. § 1983.

         To establish a civil conspiracy under § 1983, a Plaintiff must present evidence that the Defendants acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in the deprivation of a constitutional right. Glassman v. Arlington Cnty., 628 F.3d 140 (2010)(citing Hinkle v. City of Clarkshurg, 81 F.3d 416 (4th Cir.1996)). A plaintiff must set forth specific evidence that each member of the alleged conspiracy shared the same conspiratorial objective. Hinkle, 81 F.3d at 421. As such, the factual allegations must reasonably lead to the inference that the defendants came to a mutual understanding to try to "accomplish a common and unlawful plan". Plaintiffs allegations must amount to more than "rank speculation and conjecture," especially when the actions are capable of innocent interpretation. Id. at 421 -422. Here, Plaintiff sets forth only conclusory allegations of an agreement or meeting of the minds between these Defendants, such that these claims are subject to summary dismissal. See generally Ashcroft v. Iqbal, 556 U.S. at 677-679; Bell Atlantic Corn, v. Twombly, 550 U.S. at 555; see also Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003)[conclusory allegations of a conspiracy between private attorney and state officer insufficient to support § 1983 claim]. Plaintiffs conclusory allegations under 42 U.S.C. § 1985 are similarly subject to summary dismissal. See Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995) [The Fourth Circuit has "specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts."].

         2. Due Process and Equal Protection Violations

         Plaintiff alleges that Defendant Stirling failed to comply with his own policies and procedures which created a liberty interest such that he was denied due process. To prevail on a due process claim, an inmate must first demonstrate that he was deprived of "life, liberty, or property" by governmental action. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). However, Plaintiff has not alleged in his rambling and conclusory allegations that he has been deprived of life, liberty, or property by government action.

         Plaintiff contends that Defendant Bryan P. Stirling, the Director of SCDC, has violated his civil rights by failing to abide by Stirling's own policies/procedures in allowing Plaintiff to remain in custody on unsigned court orders. ECF No. 47 at 8. This is a challenge to the fact or duration of his confinement, which may not be brought in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994)[stating that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983"]; Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973)[attacking the length of duration of confinement is within the core of habeas corpus]. Moreover, to the extent that Plaintiff is seeking monetary damages for a claim that implicitly questions the validity of his conviction, such a claim is barred by Heck, as Plaintiff has not alleged that his conviction has been previously invalidated. Heck, 512 U.S. at 486-487. Additionally, any violation of a policy of the SCDC does not constitute a violation of Plaintiff s constitutional rights, and is therefore not assertable in a § 1983 action. See Keeler v. Pea 782 F.Supp. 42, 44 (D.S.C. 1992); cf Johnson v. S.C. Dep't of Corrs., No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007)[The plaintiffs allegation that defendants did not "follow their own policies or procedures, standing alone, does not amount to a constitutional violation."](citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)[if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue]).

         The undersigned is further constrained to note that Plaintiff previously unsuccessfully tried to raise an issue as to his commitment papers in a prior lawsuit. As this Court previously ...


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