Curtis v. Ziteke et al, No. 3:2021cv00420 - Document 10 (D.S.C. 2021)
Court Description: ORDER granting plaintiff twenty-one (21) days from the date this order is entered to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a) that corrects the deficiencies identified in this order. If plain tiff fails to file an amended complaint that corrects those deficiencies, this action will be recommended for summary dismissal. (Amended Complaint due by due by 3/30/2021. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) Signed by Magistrate Judge Paige J. Gossett on 3/9/2021. (mmcd)
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Curtis v. Ziteke et3:21-cv-00420-CMC-PJG al Date Filed 03/09/21 Entry Number 10 Page 1 of 6 Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Freddie L. Curtis, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. Dr. Ryan Ziteke; Dr. Danny Ford; Gilead Product, Defendants. C/A No. 3:21-420-CMC-PJG ORDER REGARDING AMENDMENT OF COMPLAINT Plaintiff Freddie L. Curtis, a self-represented state pretrial detainee, brings this civil rights action pursuant to 42 U.S.C. § 1983. 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.) for initial review pursuant to 28 U.S.C. § 1915 and § 1915A. Having reviewed the Complaint 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 is an inmate in the Sumter-Lee Regional Detention Center. Plaintiff indicates that he has arthritis in his left and right hips that was caused by the drug Stribild. (Compl., ECF No. 1 at 8.) Plaintiff indicates Stribild is made by Defendant Gilead Products. 1 Plaintiff indicates that Defendant Dr. Ryan Ziteke, who treated his arthritis, arranged for Plaintiff to have surgery to correct the arthritis. The surgery was performed by Defendant Dr. Danny Ford on December 19, 2017 at Prisma Hospital. Four days after the surgery, Plaintiff felt something pop in his right hip, and since then, the pain in his right hip is worse than before the surgery. Plaintiff claims Dr. Ziteke 1 Also spelled “Gilead Product” in the caption. Page 1 of 6 Dockets.Justia.com 3:21-cv-00420-CMC-PJG Date Filed 03/09/21 Entry Number 10 Page 2 of 6 now gives him steroid injections but that only makes things worse and he refuses to schedule corrective surgery. Plaintiff brings this action for damages pursuant to 42 U.S.C. § 1983 against the defendants for violations of the Cruel and Unusual Punishment and Equal Protection Clauses. Plaintiff also asserts causes of action for conspiracy and neglect to prevent conspiracy pursuant to 42 U.S.C. § 1985 and § 1986. 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). To state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. 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, Page 2 of 6 3:21-cv-00420-CMC-PJG Date Filed 03/09/21 Entry Number 10 Page 3 of 6 550 U.S. at 570. The reviewing court need only accept as true the 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 Complaint is filed pursuant to 42 U.S.C. § 1983, which “ ‘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) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). 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). Here, Plaintiff fails to provide any facts that would plausibly show that the defendants are state actors amenable to suit pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. See generally West, 487 U.S. at 49 (“To constitute state action, ‘the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,’ and ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.”) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 n.18 (1982)); see also Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (stating Page 3 of 6 3:21-cv-00420-CMC-PJG Date Filed 03/09/21 Entry Number 10 Page 4 of 6 that whether the defendants are state actors depends on, among other factors, whether the injury caused is aggravated in a unique way by the incidents of governmental authority, the extent and nature of public assistance and public benefits accorded the private actor, the extent and nature of governmental regulation over the actor, and whether the state itself regards the actor as a state actor). While Plaintiff indicates he is currently an inmate at a publicly run jail, he provides no indication that the individual defendants’ treatment of Plaintiff occurred during his incarceration or at the direction of public officials. Similarly, Plaintiff fails to provide any allegations that would connect Gilead Products to any state action. 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 may 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 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. § 1915A and § 1915A. Further, Plaintiff is reminded that an amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F .3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case . . .”). Page 4 of 6 3:21-cv-00420-CMC-PJG Date Filed 03/09/21 Entry Number 10 Page 5 of 6 IT IS SO ORDERED. March 9, 2021 Columbia, South Carolina __________________________________________ Paige J. Gossett UNITED STATES MAGISTRATE JUDGE Plaintiff’s attention is directed to the important WARNING on the following page. Page 5 of 6 3:21-cv-00420-CMC-PJG Date Filed 03/09/21 Entry Number 10 Page 6 of 6 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 6 of 6
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