Opinion
C. A. 9:22-04553-SAL-MHC
03-22-2023
Quatavious Bivens, also known as Quatavious Bernard Bivens, Plaintiff, v. Brittany Boyd, A.W. Duffy, Sgt. McClellan, Bryan Stirling, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, Quatavious Bivens, an inmate at the Perry Correctional Institution (PCI) of the South Carolina Department of Corrections (SCDC), filed this action pursuant to 42 U.S.C. § 1983. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. In an Order dated February 8, 2023, Plaintiff was advised of pleading deficiencies and given an opportunity to amend his Complaint. See ECF No. 5. On February 27, 2023, Plaintiff filed an Amended Complaint. ECF No. 8.
I. BACKGROUND
Plaintiff contends that Defendants violated his constitutional rights because he allegedly was subjected to verbal sexual harassment, deliberate indifference, cruel and unusual punishment, and a due process violation. ECF No. 8 at 4. Plaintiff brings claims about an incident that allegedly occurred in the shower area of PCI from approximately 7:30 a.m. to 8:00 a.m. He alleges that he “asked for shampoo and Sgt. McClellan looked between [Plaintiff's] legs and stated ‘nice' with a smile.” ECF No. 8 at 5. Plaintiff asserts that he submitted a Prison Rape Elimination Act (PREA) complaint about the incident. Defendant A.W. Duffy, an associate warden at PCI, allegedly denied the complaint and stated that “[Plaintiff] wasn't physically raped.” Id. Plaintiff alleges that Defendant Brittany Boyd, a mental health counselor at PCI, never came to speak with him even after he “sent several staff report[s].” Id. at 5-6. He also asserts that Defendant Boyd “never did a follow up” after Plaintiff submitted the PREA complaint. Id. at 4.
In his Amended Complaint, Plaintiff neglected to state the date of the alleged incident. See ECF No. 8 at 5. In his original Complaint, he asserted that the incident occurred on July 11, 2022. See ECF No. 1 at 5.
Plaintiff has not alleged any injuries (he left the “Injuries” section of the complaint form blank). See ECF No. 8 at 4. He asks for monetary damages and requests that Sgt. McClellan be fired, A.W. Duffy be demoted to a Sergeant or Lieutenant, and PCI follow the PREA policy. Id. at 6.
Defendants are all state, not federal, employees. To the extent Plaintiff requests that Sgt. McClellan be fired and that A. W. Duffy be demoted, such relief is not available because this Court cannot terminate these Defendants from employment or demote them. See Maxton v. Johnson, 488 F.Supp. 1030, 1032 n. 2 (D.S.C. 1980) (a federal district court lacks inherent power to hire, remove, or reassign officials not within the executive control of that federal district court), citing United States v. White County Bridge Commission, 275 F.2d 529, 535 (7th Cir. 1960).
II. STANDARD OF REVIEW
A pro se complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, 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), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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”).
III. DISCUSSION
It is recommended that this action be summarily dismissed for the reasons discussed below.
A. Plaintiff has not Alleged Any Claim Against Defendant Bryan Stirling (Stirling)
Although Plaintiff lists the name of Defendant SCDC Director Stirling in the caption of his Complaint and his list of Defendants, his pleadings fail to provide any specific facts to support a claim that Defendant Stirling violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (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))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”).
B. Supervisory Liability
To the extent that Plaintiff may be attempting to bring a claim against Defendant Stirling or any of the other Defendants based on a theory of supervisory liability, such claims are subject to summary dismissal. To state a claim for supervisory liability under § 1983, a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Here, Plaintiff does not allege any facts to establish supervisory liability as to any of the Defendants.
C. Verbal Sexual Harassment/PREA Violation Claims
Plaintiff alleges that Defendant McClellan sexually harassed him. However, this one alleged incident of verbal sexual harassment, although certainly not to be condoned if true, fails to rise to the level of a constitutional violation. Although a prisoner has “a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.” Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (quoting Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)). In Jackson, the Fourth Circuit found that the plaintiff's allegations that the defendant sent the plaintiff a “sexually explicit and lurid” letter, posed seductively in front of him, whispered sexually explicit words to him, and planted her groin area in Jackson's face while he was seated for his haircut in the barber's chair, were insufficient to rise to the level of an Eighth Amendment violation. Id. at 244. Recently, a district court in the Fourth Circuit summarily dismissed a prisoner's Eighth Amendment sexual abuse or harassment claim (the prisoner alleged that a prison guard watched him urinate and made a profane comment about the incident), noting that the Eighth Amendment's protections against cruel and unusual punishment do not necessarily extend to mere verbal sexual harassment. See Bishop v. Lambert, No. 7:22CV00614, 2023 WL 1466621, at **2-3 (W.D. Va. Feb. 2, 2023).
To the extent Plaintiff is attempting to allege a PREA violation, his claim fails because the PREA does not give rise to a private right of action. “The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue....” De'lonta v. Clarke, C/A No. 7:11-00483, 2013 WL 209489, at *3 (W.D. Va. Jan. 14, 2013) (citation omitted). However, the PREA did not create a private right of action allowing a plaintiff to bring a claim pursuant to the PREA against a prison official. See Byrd v. South Carolina Dep't of Corr., No. 5:11-3340-MGL, 2013 WL 5309759, at *11 (D.S.C. Sept. 19, 2013) (“Because § 1983 itself does [not] create any rights, and the text and the structure of the PREA provide no indication that Congress intended to create new individual rights, there is no basis for a private right of action for inmates to sue prison officials for noncompliance with the Act.”) (footnote and citations omitted); Chapman v. Willis, No. 7:12-CV-00389, 2013 WL 2322947, at *4 (W.D. Va. May 28, 2013) (the plaintiff, who alleged that a defendant talked to him and/or touched him in a sexual manner and other defendants acted to cover up the alleged inappropriate manner, failed to state a claim under § 1983 to enforce a PREA violation because nothing in the PREA suggests that Congress intended to create a private right of action for inmates to sue prison officials for noncompliance with the PREA and the PREA does not grant prisoners any specific rights); see also Bishop v. Lambert, 2023 WL 1466621, at *2 (noting that courts “have found no basis in law for a private cause of action under § 1983 by which an inmate may sue for noncompliance with any PREA provision.”). Hill v. Hickman County Jail, No. 1:15-cv-0071, 2015 WL 5009301, at *3 (M.D. Tenn. Aug. 21, 2015) (collecting cases holding that there is no private right of action under the PREA, and holding that “[t]o the extent the complaint might be construed as bringing a claim under the PREA, such claim must be dismissed”).
D. Failure to Follow SCDC Policy
To the extent that Plaintiff may be attempting to allege that Defendant Duffy violated SCDC policy by refusing to file a PREA report and that Defendant Boyd violated SCDC policy by failing to do a “follow up” and failing to speak with him after he sent a staff request, such claims should be dismissed. A claim that a defendant failed to follow SCDC policies or rules is not actionable in a § 1983 action because a violation of SCDC policies and/or procedures does not constitute a violation of Plaintiff's constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); cf. Johnson v. S.C. Dep't of Corrs., No. 06B2062, 2007 WL 904826 at *12 (D.S.C. Mar. 21, 2007) (A plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, does not amount to a constitutional violation.) (citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)) (if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue). Thus, any claim that Defendants violated SCDC policy should be summarily dismissed.
To the extent Plaintiff may be attempting to state a claim for deliberate indifference to a serious medical need, any such claim should be summarily dismissed because Plaintiff has not alleged that he had a serious medical need and that the defendant(s) acted with deliberate indifference to that need. See Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209-210 (4th Cir. 2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)); see also King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Estelle v. Gamble, 429 U.S. 97, 104 (1976).
E. State Law Claims
Finally, to the extent that Plaintiff is attempting to allege any claim under South Carolina law, this court should not exercise supplemental jurisdiction over such claims. As Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States[.]” 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and all Defendants are citizens of South Carolina. See ECF No. 8 at 2-3. Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367 ; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Amended Complaint without leave to amend and without issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018); see also Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (“when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
Plaintiff's attention is directed to the important notice on the following 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 & Acc. 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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).