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Greene v. Stephan
United States District Court, D. South Carolina
September 24, 2019
Latorey J. Greene, Sr., #292916, Plaintiff,
Warden Michael Stephan, Major Parrish, L.T. Williams, L.T. Parker, Capt. Carter, Officer C. Booker, Mrs. Collins, SGT. Barr, Ms. Holmes, Ms. Washington, S.G.T. Fox, Officer Durant, McElveen, Dixon, McKenzie, K. Rivers, Janine Wrecsizs, L. Johnson, Smith, Ms. Miller, Ms. Marbley, Ms. Desia, McDuffie RN, Ms. Miller, W. Fulton, Ms. Green, Officer Stuckey, Warden Shepard, Major Clark, L.T. Belton, Capt. Mack, S.G.T. Palmer, Capt. Brightheart, S.G.T. Williams, Officer Robinson, Samuel L. Soltis, Micheal McCall, B. Lewis, J. Pate, Ms. Ardis, S. Stokes, Nadine Pridgen, Ann Hallman, Cheron M. Hess, Warden McKie, David Martinez, L.T. Freng, J. McRee, Dr. A. Compton Defendants.
REPORT AND RECOMMENDATION
V. Hodges, United States Magistrate Judge.
J. Greene, Sr. (“Plaintiff”), proceeding pro se
and in forma pauperis, filed this complaint pursuant to 42
U.S.C. § 1983 against the above-named Defendants,
alleging violations of his civil rights. Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ.
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 following
reasons, the undersigned recommends the district judge
dismiss the complaint without prejudice and without issuance
and service of process.
Factual and Procedural Background
is a state prisoner currently housed at Perry Correctional
Institution. [ECF No. 1 at 2]. Plaintiff has been
incarcerated in various South Carolina Department of
Corrections (“SCDC”) facilities since February
2000. Id. at 5. He alleges “numerous staff
members” have contributed to his mental and physical
trauma. Id. at 3. He claims he suffers from multiple
physical and psychiatric symptoms. Id. at 3. He
states he has been subjected to excessive force and denied
medical attention. Id. at 3. He claims he has been
sexually assaulted and stabbed on more than one occasion.
Id. at 3. He states he was housed with other inmates
who had infectious diseases, as well as with other inmates
who assaulted him. Id. at 3. He claims SCDC
employees placed him in hostile situations. Id. at
4. He indicates he was injured in a bus accident at Kirkland
Correctional Institution. Id. at 3. He maintains he
was improperly subjected to lock-up in April 2018.
Id. at 4. He claims SCDC employees have defamed his
character by referring to him as a homosexual male.
Id. at 3. He states his cell windows have been
covered, preventing him from discerning night from day.
Id. at 4. He indicates he has been denied recreation
by SCDC employees at multiple institutions. Id. at
4. He complains of poor air circulation and dirty showers.
Id. at 2, 4. He generally alleges SCDC staff does
not protect inmates. Id. at 3. He states he was
denied protective custody after he reported information about
gang violence and a murder. Id. at 3. He claims he
has been subjected to solitary confinement, exacerbating his
mental health symptoms. Id. at 4.
asserts claims for violation of due process and cruel and
unusual punishment and seeks damages and injunctive relief.
filed his complaint on August 22, 2019. [ECF No. 1]. On
August 30, 2019, the undersigned issued (1) an order
directing Plaintiff to complete documents necessary to bring
the case into proper form for service and (2) an order and
notice, cautioning Plaintiff that his case was subject to
summary dismissal and permitting him until September 20,
2019, to attempt to correct defects in his complaint. [ECF
Nos. 8 and 9]. Plaintiff has failed to comply with either
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 that 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.
Failure to Prosecute
well established that a district court has authority to
dismiss a case for failure to prosecute. “The authority
of a court to dismiss sua sponte for lack of prosecution has
generally been considered an ‘inherent power,'
governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.” See Link v. Wabash R.R. Co., 370 U.S.
626, 630-31 (1962). In addition to its inherent authority,
this court may also sua sponte dismiss a case for lack of
prosecution under Fed.R.Civ.P. 41(b). Id. at 630.
Based on Plaintiff's failure to respond to the
court's August 30, 2019 orders, the undersigned concludes
Plaintiff does not intend to pursue the above-captioned