LAMB v. KIRKLAND CORRECTIONAL INSTITUTION MEDICAL STAFF

BRUCE HENDRICKS, Magistrate Judge

Charles Lamb (Plaintiff), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff is incarcerated at Lieber Correctional Institution, and he files this action in forma pauperis under 28 U.S.C. § 1915. This complaint names Kirkland Correctional Institution Medical Staff (Defendant) as the defendant. In his brief complaint, Plaintiff alleges that Defendant refused to give Plaintiff any medical treatment when he broke his right hand because Defendant refused to follow its own medical policy by refusing to order a cast for Plaintiff's broken hand. (Compl. at 3.) Plaintiff seeks damages in the amount of "Three (300) hundred Trillion Thousand Dollars." (Compl. at 3.)

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Further reference to this complaint brought under Title 42 of the United States Code will be by section number only.

Pro Se and In Forma Pauperis 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 28 U.S.C. § 1915; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996). This review has been conducted 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 (4^th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4^th Cir. 1983).

This 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" or is "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5^th Cir. 1995).

This Court is required to liberally construe pro se documents, Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197 (2007); Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 9 (1980). 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 the plaintiff could prevail, it should do so. However, 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 (4th Cir. 1990).

Discussion

This 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)). A civil 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. To state a claim under § 1983, a plaintiff must allege 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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Because it is well settled that only "persons" may act under color of state law, a defendant in a § 1983 action must qualify as a "person." Use of the term "staff" or the equivalent as a name for alleged defendants, without the naming of specific staff members, is not adequate to state a claim against a "person" as required in § 1983 actions. See Martin v. UConn Health Care, 2000 WL 303262, *1 (D. Conn., Feb. 09, 2000); Ferguson v. Morgan, 1991 WL 115759 (S.D.N.Y. Jun. 20, 1991). Additionally, Plaintiff fails to provide any identifying information such as the date and time of the alleged constitutional violation so that any individuals who constitute Defendant could be construed as unnamed, but identifiable, "John Doe" defendants. Because Kirkland Correctional Institution Medical Staff is not a person under § 1983, this complaint should be dismissed.

Even if Plaintiff had properly named a defendant, Plaintiff fails to state a claim of deliberate indifference to his medical needs, if indeed this is the constitutional violation he attempts to allege, because it is unsupported by the facts. In order to establish cruel and unusual punishment with respect to medical care, a prisoner in a § 1983 case "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. at 106. Plaintiff alleges that he had a broken hand that did not receive a cast. (Compl. at 3.) Deliberate indifference to a prisoner's serious medical needs is actionable under § 1983 if the plaintiff can prove that his inadequate medical care was more than merely negligent. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). "Deliberate indifference may be demonstrated by either actual intent or reckless disregard." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

Plaintiff fails to allege any facts other than he did not receive a cast as required by Defendant's policy. At most, this sounds in negligence, and negligent or incorrect medical treatment is not actionable under § 1983. Estelle v. Gamble, 429 U.S. at 106. Negligence, in general, is not actionable under § 1983. See Daniels v. Williams, 474 U.S. 327, 328-36 n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987); Pink v. Lester, 52 F.3d 73, (4th Cir. 1995) (applying Daniels v. Williams and Ruefly v. Landon: "The district court properly held that Daniels bars an action under § 1983 for negligent conduct[.]").

To the extent that Plaintiff may be attempting to assert a claim based on Defendant's alleged violation of (or failure to follow) prison policy, this assertion fails to set forth a claim of constitutional magnitude. The failure of a prison official to follow prison policy, does not, standing alone, amount to a constitutional violation. See Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1469 (4^th Cir. 1990); Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992). Therefore, this Complaint should be dismissed for failure name a defendant amendable to suit and failure to state a claim upon which relief may be granted.

Recommendation

Accordingly, it is recommended that the District Judge dismiss the complaint in the above-captioned case without prejudice and without issuance and service of process. See United Mine Workers v. Gibbs, 383 U.S. 715 (1966); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972).

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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In 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 (4^th Cir. 2005).

Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:

Larry W. Propes, Clerk

United States District Court

Post Office Box 10768

Greenville, South Carolina 29603

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).