Browning et al v. McGowan et al, No. 0:2018cv02790 - Document 12 (D.S.C. 2018)
Court Description: ORDER granting Plaintiff twenty-one (21) days from the date this order is entered to file an amended complaint that corrects the deficiencies identified in this order. If Plaintiff fails to file an amended complaint that corrects those deficiencies, this action will be recommended for summary dismissal. (Amended Complaint due by 12/27/2018.) Signed by Magistrate Judge Paige J. Gossett on 12/4/2018. (bgoo)
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Browning et al v. McGowan et al Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION ) ) ) Plaintiffs, ) ) v. ) ) Neil McGowan; Melinda Haney; Jennifer ) Lawson; Eric Delaney, ) ) Defendants. _____________________________________ ) C/A No. 0:18-2790-RBH-PJG David Browning, ORDER REGARDING AMENDMENT OF COMPLAINT The plaintiff, David Browning, a self-represented state pretrial detainee, brings this civil rights action.1 Plaintiff files this Complaint pursuant to 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the Complaint as it pertains to Plaintiff David Browning, in accordance with applicable law, the court finds this action is subject to summary dismissal if Plaintiff does not amend the Complaint to cure the deficiencies identified herein. I. Factual and Procedural Background Plaintiff, an inmate at the Union County Detention Center, brings this action alleging that his jail cell is infested with bugs that bite him in his sleep. (Compl., ECF No. 1 at 6.) He alleges that he was bitten in the face by bugs on the night of April 29, 2018, causing an infection. (Id. at 6, 13.) He alleges the infection went untreated, and eventually led to a total loss of hearing and migraines. 1 By order dated October 26, 2018, the court directed that Otis Jefferson Smith be terminated as a Plaintiff in this case. (ECF No. 8.) Thus, David Browning is the only Plaintiff in this matter. Page 1 of 7 Dockets.Justia.com (Id. at 6.) Plaintiff brings these claims pursuant to 42 U.S.C. § 1983 for damages, based on the defendants’ purported “medical negligence” and failure to ensure safe living conditions. (Id. at 14.) II. Discussion A. Standard of Review 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 the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), including 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. The 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, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the Page 2 of 7 complaint’s factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”). B. Analysis The court finds Plaintiff’s case is subject to summary dismissal for failure to state a claim if he does not amend his Complaint. A legal action under 42 U.S.C. § 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). To state a claim under § 1983, a plaintiff must allege: (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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). But here, Plaintiff fails to allege any facts about the named defendants that would show that they had any involvement in the purported unsafe living conditions and lack of medical care that Plaintiff alleges in the Complaint. See 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 Page 3 of 7 § 1983, it must be ‘affirmatively shown that the official charged acted personally in the deprivation of the plaintiff’s rights. The doctrine of respondeat superior has no application under this section.’ ”) (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). Because Plaintiff does not explain how the named defendants were involved in the purported violation of Plaintiff’s rights, Plaintiff fails to meet the federal pleading standards. See Fed. R. Civ. P. 8 (requiring that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief”); Iqbal, 556 U.S. at 678 (stating Federal Rule of Civil Procedure 8 does not require detailed factual allegations, but it requires more than a plain accusation that the defendant unlawfully harmed the plaintiff, devoid of factual support). Also, to the extent that Plaintiff seeks to raise claims of negligence or medical malpractice, they are not actionable under § 1983. See Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987) (stating negligent conduct cannot support a claim for a violation of the Eight Amendment’s Cruel and Unusual Punishment Clause); Gregory v. Prison Health Servs., Inc., 247 F. App’x 433, 435 (4th Cir. 2007) (unpublished) (finding allegations of negligence, medical malpractice, and disagreement with medical treatment is not sufficient to state a claim for relief for deliberate indifference under § 1983); see also Estelle v. Gamble, 429 U.S. 97,106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). Moreover, if Plaintiff is attempting to bring a state law claim for negligence or medical malpractice, in South Carolina, a plaintiff must file “as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim . . . .” S.C. Code Ann. § 15-36-100(B). A plaintiff’s “failure to file such an affidavit with the Complaint requires dismissal of the case in state court.” Allen v. United States, C/A No. 2:13-2740-RMG, 2015 Page 4 of 7 WL 1517510, at *6 (D.S.C. Apr.1, 2015) (adopting the report and recommendation as the order of the court) (citing Rotureau v. Chaplin, C/A No. 2:09-1388-DCN, 2009 WL 5195968, at *6 (D.S.C. Dec. 21, 2009)). Here, Plaintiff has not provided an affidavit of an expert witness as part of the Complaint. Thus, Plaintiff’s medical malpractice claim would be subject to summary dismissal. Consequently, Plaintiff’s Complaint is subject to summary dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for failure to state a claim upon which relief can be granted. Plaintiff is hereby granted twenty-one (21) days from the date this order is entered (plus three days for mail time) to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a) that corrects the deficiencies identified above.2 In a contemporaneously issued order, the court has provided Plaintiff with instructions to bring this case into proper form for initial review and the issuance and service of process. In that order are instructions to fill out the standard pro se prisoner complaint form attached to the order. Plaintiff may use the attached complaint form to correct the deficiencies identified in this order. If Plaintiff fails to file an amended complaint that corrects those deficiencies, this action will be recommended for summary dismissal pursuant to 28 U.S.C. § 1915 and § 1915A. 2 Any amended complaint filed by Plaintiff is also subject to further initial review by the court pursuant to 28 U.S.C. § 1915 and § 1915A. Page 5 of 7 IT IS SO ORDERED. ___________________________________ Paige J. Gossett UNITED STATES MAGISTRATE JUDGE December 4, 2018 Columbia, South Carolina Plaintiff’s attention is directed to the important WARNING on the following page. Page 6 of 7 IMPORTANT INFORMATION . . . PLEASE READ CAREFULLY WARNING TO PRO SE PARTY OR NONPARTY FILERS ALL DOCUMENTS THAT YOU FILE WITH THE COURT WILL BE AVAILABLE TO THE PUBLIC ON THE INTERNET THROUGH PACER (PUBLIC ACCESS TO COURT ELECTRONIC RECORDS) AND THE COURT’S ELECTRONIC CASE FILING SYSTEM. CERTAIN PERSONAL IDENTIFYING INFORMATION SHOULD NOT BE INCLUDED IN, OR SHOULD BE REMOVED FROM, ALL DOCUMENTS BEFORE YOU SUBMIT THE DOCUMENTS TO THE COURT FOR FILING. Rule 5.2 of the Federal Rules of Civil Procedure provides for privacy protection of electronic or paper filings made with the court. Rule 5.2 applies to ALL documents submitted for filing, including pleadings, exhibits to pleadings, discovery responses, and any other document submitted by any party or nonparty for filing. Unless otherwise ordered by the court, a party or nonparty filer should not put certain types of an individual’s personal identifying information in documents submitted for filing to any United States District Court. If it is necessary to file a document that already contains personal identifying information, the personal identifying information should be “blacked out” or redacted prior to submitting the document to the Clerk of Court for filing. A person filing any document containing their own personal identifying information waives the protection of Rule 5.2(a) by filing the information without redaction and not under seal. 1. Personal information protected by Rule 5.2(a): (a) Social Security and Taxpayer identification numbers. If an individual’s social security number or a taxpayer identification number must be included in a document, the filer may include only the last four digits of that number. (b) Names of Minor Children. If the involvement of a minor child must be mentioned, the filer may include only the initials of that child. (c) Dates of Birth. If an individual’s date of birth must be included in a document, the filer may include only the year of birth. (d) Financial Account Numbers. If financial account numbers are relevant, the filer may include only the last four digits of these numbers. 2. Protection of other sensitive personal information – such as driver’s license numbers and alien registration numbers – may be sought under Rule 5.2(d) (filings made under seal) and (e) (protective orders). Page 7 of 7
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