United States District Court, D. South Carolina
Willie Frazier, # 219272, a/k/a Willie Bernard Frazier, Plaintiff,
South Carolina Department of Corrections, Officer Kimbrell, Luetinant Borem, Defendants.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
a civil action filed by a state prisoner, proceeding pro
se and in forma pauperis. Pursuant to 28 U.S.C.
§ 636(b)(1) and District of South Carolina Local Civil
Rule 73.02(B)(2)(e), the undersigned is authorized to review
all pretrial matters in such pro se cases and to
submit findings and recommendations to the district court.
See 28 U.S.C. § 1915(e).
established local procedure in this judicial district, a
careful review has been made of the pro se complaint
filed in this case. This review has been conducted pursuant
to the procedural provisions of 28 U.S.C. §§ 1915,
1915A, and the Prison Litigation Reform Act of 1996, and in
light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc);
Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
Complaint has been filed 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 the case upon a finding that the action
“fails to state a claim on which relief may be granted,
” “is frivolous or malicious, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). A finding of frivolousness can be made where
the complaint “lacks an arguable basis either in law or
in fact.” Denton, 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte. See
Neitzke, 490 U.S. at 327.
court is required to liberally construe pro se
complaints. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Such pro se complaints are held to a less
stringent standard than those drafted by attorneys.
Id.; Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978). Even under this less stringent standard,
however, the pro se complaint is subject to summary
dismissal. 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
plaintiff could prevail, it should do so, but a district
court may not rewrite a complaint to include claims that were
never presented, construct the plaintiff's legal
arguments for him, or conjure up questions never squarely
presented to the court. Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985); Small v.
Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v.
Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district
court. Weller v. Dep't of Soc. Servs., 901 F.2d
387, 390-91 (4th Cir. 1990) (The “special judicial
solicitude” with which a [court] should view such pro
se complaints does not transform the court into an
brings this action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges officers Kimbrell and Brown are sexually
harassing him and he feels rape is imminent. (ECF No. 15 at
5-6). The two officers strip search him and do visual anal
cavity searches every time he leaves his cell and use
sexually harassing slurs. Because of this Plaintiff feels
recreation and showers are denied because he is refusing the
constant cavity searches. (ECF No. 15 at 5-6). Plaintiff
requests monetary and injunctive relief. (ECF No. 15 at
provides sufficient factual allegations to withstand summary
dismissal of Defendants Kimbrell and Borem. In a separately
docketed order, the court has authorized issuance and service
of process on these Defendants.
South Carolina Department of Corrections(SCDC)
Amended Complaint fails to state a claim as to Defendant
1983 “ is not itself a source of substantive rights,
but merely provides a method for vindicating federal rights
elsewhere conferred.” Albright v. Oliver, 510
U.S. 266, 271 (1994) (internal quotation and citation
omitted). A legal action under § 1983 allows “a
party who has been deprived of a federal right under the
color of state law to seek relief.” City of
Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687, 707 (1999). Under § 1983, a plaintiff must
establish two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation “was committed by a
person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988).
order to assert a plausible § 1983 claim against any
particular state actor, a “causal connection”
must exist between the conduct alleged by the plaintiff and
the particular defendant named in the suit. See Kentucky
v. Graham, 473 U.S.159, 166 (1985); Rizzo v.
Good, 423 U.S. 362, 371-72 (1976) (a § 1983
plaintiff must show that he suffered a specific injury
resulting from a specific defendant's specific conduct
and must show an affirmative link between the injury and that
conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th
Cir. 1977) (for an individual to be liable under § 1983,
the Plaintiff must show that the defendant named acted
personally in the deprivation of the plaintiff's rights).
not a person for purposes of liability under § 1983.
Will v. Michigan Dep't of State Police, 491 U.S.
58, 66 (1989) (“We hold that neither a State nor its
officials acting in their official capacities are
‘persons' under § 1983.”); see also
McElrath v. S.C. Dep't of Corr./Golden, No.
5:13-317-MGL, 2013 WL 1874852, at *2 (D.S.C. May 3, 2013).
Section 1983 makes “persons” acting under the
color of law liable for Constitutional deprivations.
“Persons” includes local governments whose
officials commit constitutional torts “according to
municipal policy, practice, or custom.” Weiner v.
San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir.2000).
“Persons” does not include “the State and
arms of the State, ” which receive sovereign immunity
from the Eleventh Amendment. Howlett v. Rose, 496
U.S. 356, 365 (1990). Since SCDC is an arm of the state, and
not a political subdivision or municipality, theories of
municipal liability discussed in Monell v. Department of
Social Services, 436 U.S. 658 (1978) have no application
here. McElrath v. S.C. Dep't of Corr./Golden,
No. 5:13-317-MGL, 2013 WL 1874852, at *2 (D.S.C. May 3,
2013). Specifically, the “Court's holding in
Monell was ...