United States District Court, D. South Carolina
REPORT AND RECOMMENDATION (PARTIAL SUMMARY
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rusty Merritte Dunbar, also known as Ha Ha,
proceeding pro se and in forma pauperis, brings this
action pursuant to 42 U.S.C. § 1983. He is an inmate at
the Perry Correctional Institution (PCI), part of the South
Carolina Department of Corrections (SCDC).
established local procedure in this judicial district, a
careful review has been made of the pro se Complaint pursuant
to the procedural provisions of 28 U.S.C. § 1915 and
§ 1915A, 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.
19951 and Todd v. Baskerville, 712 F.2d 70 (4th Cir.
1983). Prose 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 Corp. 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, Defendant South Carolina
is 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].
alleges that Defendant Brenda Jacobs, an officer at PCI who
also serves as the PCI law librarian, violated his
constitutional rights. He claims that Jacobs refused to copy
certain legal materials and that she allegedly improperly
read and confiscated some of Plaintiffs legal materials
(another inmate's legal brief) because they belonged to
another inmate (Plaintiff asserts that the other inmate
"gifted" the legal brief to him such that the brief
was Plaintiffs property) and returned these materials to the
other inmate. Plaintiff contends that the confiscated
materials are needed for his pending South Carolina cases. He
requests compensatory and punitive damages.
Plaintiff has named South Carolina as a Defendant in this
action, he has not made any specific allegations against this
Defendant. See Bell Atlantic Corp. v. Twombly, 550
U.S. at 555 [requiring, in order to avoid dismissal,
'"a short and plain statement of the claim showing
that the pleader is entitled to relief,' in order to
'give the defendant fair notice of what the... claim is
and the grounds upon which it rests'" (quoting
Fed.R.Civ.P. 8(a)(2)). In order to proceed under §1983,
a plaintiff must affirmatively show that a defendant acted
personally in the deprivation of his constitutional rights;
Vinnedee v. Gibbs, 550 F.2d 926, 928 (4th Cir.
1977); and when a complaint contains no personal allegations
against a defendant, that defendant is properly dismissed.
See Karafiat v. O'Mally, 54 Fed.Appx. 192, 195
(6th Cir. 2002); Curtis v. Ozmint, C/A No.
3:10-3053-CMC-JRM, 2011 WL 635302. at *4 n. 5 (D.S.C. Jan.
5.2011); Whaley v. Hatcher, No. 1;08CV 125-01-MU,
2008 WL 1806124, at *1 (W.D. N.C. Apr. 18, 2008). Plaintiff
wrote "Respondeat Superior" in the description of
this Defendant's job or title. ECF No. 1 at 2-3. However,
Plaintiff fails to allege any facts about South Carolina that
would show that this Defendant was personally involved in any
purported constitutional deprivation. See Ashcroft v.
Iqbal, 556 U.S. at 676 [providing that a plaintiff in a
§ 1983 action must plead that the defendant, through his
own individual actions, violated the Constitution];
Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)
["In order for an individual to be liable under §
1983, it must be 'affirmatively shown that the official
charged acted personally in the deprivation of the plaintiffs
rights. The doctrine of respondeat superior has no
application under this section.'"](quoting
Vinnedge v. Gibbs, 550 F.2d at 928).
any request for monetary damages against Defendant South
Carolina is barred by the Eleventh Amendment to the United
States Constitution, which divests this court of jurisdiction
to entertain a suit for damages brought against the State of
South Carolina or its integral parts. Even if Plaintiff meant
instead to name SCDC instead of South Carolina as a
defendant, SCDC would also be entitled to Eleventh Amendment
immunity as the SCDC is considered an integral part of the
State of South Carolina. See S.C. Code Ann. § 24-1-30
[statute creating the agency of SCDC]; Florida Dep't.
of State v. Treasure Salvors. Inc., 458 U.S. 670, 684
(1982) [state agencies are arms of the state and entitled to
Eleventh Amendment immunity]; Ram Ditta v. Md. Nat'l
Capital Park & Planning Comm'n, 822 F.2d 456,
457 (4th Cir. 1987)[Eleventh Amendment shields a state entity
from suit in federal court "if, in [the entity's]
operations, the state is the real party in interest," in
the sense that the "named party [is] the alter
ego of the state."]; Laudman v. Padula,
No. 3:12-2382-SB, 2013 WL 5469977, at *7 (D.S.C. Sept. 30,
2013) [dismissing claims against state agency]; see Alden
v. Maine. 527 U.S. 706 (1999); College Savs.
Bank v. Florida Prepaid Educ. v. Halderman, 465 U.S. 89
(1984) [although express language of Eleventh Amendment only
forbids suits by citizens of other States against a State,
Eleventh Amendment bars suits against a State filed by its
own citizens]; Alabama v. Push, 438 U.S. 781, 782
(1978); Will v. Michigan Dep't of State Police,
491 U.S. 58, 61-71 (1989); Edelman v. Jordan, 415
U.S. 651, 663 (1974)[stating that "when the action is in
essence one for the recovery of money from the state, the
state is the real, substantial party in interest and is
entitled to invoke its [Eleventh Amendment] sovereign
immunity from suit even though individual officials are
nominal defendants"] (quoting Ford Motor Co. v.
Dep't. of Treasury, 323 U.S. 459, 464 (1945)); see
also Harter v. Vernon, 101 F.3d 334, 338-39 (4th
Cir. 1996); Bellamy v. Borders, 727 F.Supp. 247,
248-50 (D.S.C. 1989).
the United States Congress can override Eleventh Amendment
immunity through legislation, Congress has not overridden the
States' Eleventh Amendment immunity in § 1983
Quern v. Jordan. 440 U.S. 332, 343 (1979). Further,
although a State may itself consent to suit in a federal
district court, Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 99 & n. 9 (1984), the State
of South Carolina has not consented to such actions. To the
contrary, the South Carolina Tort Claims Act expressly
provides that the State of South Carolina does not waive
Eleventh Amendment immunity, consents to suit only in a court
of the State of South Carolina, and does not consent to suit
in a federal court or in a court of another state. S.C. Code
Ann. § 15-78-20(e).
on the foregoing, it is recommended that Defendant South
Carolina be summarily dismissed as a Defendant to this
action. The Complaint should be served on the remaining
Defendant (Brenda Jacobs). Plaintiffs attention is directed
to the important notice on the next page.
of Right to File Objections to Report and
Recommendation The parties are advised that they may
file specific written objections to this Report and
Recommendation with the District Judge. Objections must
specifically identify the portions of the Report and
Recommendation to which objections are made and the basis for
such objections. "[I]n the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must 'only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation.'" Diamond v. Colonial
Life & Ace. Ins. Co., 416 F.3d 310 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P.
6(a), (d). Filing by mail pursuant to Federal Rule of Civil
Procedure 5 may be accomplished by mailing objections to:
L. Blume, Clerk United States District Court Post Office Box
835 Charleston, South Carolina 29402 Failure to
timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn,474 U.S. 140 (1985); Wrig ...