United States District Court, D. South Carolina
REPORT AND RECOMMENDATION (PARTIAL SUMMARY
Bristow Marchant United States Magistrate Judge
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.
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).
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
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.
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). 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.
Civil Rights Conspiracy
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.
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
Due Process and Equal Protection Violations
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.
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]).
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