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Dunbar v. Jacobs

United States District Court, D. South Carolina

October 3, 2019

Rusty Merritte Dunbar, a/k/a Ha Ha, Plaintiff,
v.
Brenda Jacobs, South Carolina, Defendants.

          REPORT AND RECOMMENDATION (PARTIAL SUMMARY DISMISSAL)

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         The 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).

         Under 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).

         However, 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].

         Discussion

         Plaintiff 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.

         Although 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).

         Additionally, 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).

         While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the States' Eleventh Amendment immunity in § 1983 cases.[*] See 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).

         Recommendation

         Based 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.

         Notice 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).

         Specific 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:

         Robin 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 ...


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