3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`DISTRICT OF SOUTH CAROLINA
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`David Lee Garner, #57768-019, ) C/A No. 3:11-2702-TLW-JRM
`)
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`Plaintiff,
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`vs.
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`The Supreme Court of United States;
`The United States Department of Justice;
`The United States District Court of Boston, MA.;
`The South Carolina Administrative Law Court;
`The South Carolina Supreme Court;
`President Barack Obama;
`Former Presidents of the Unites States George Bush Sr.,
`and George W. Bush Jr.;
`Vice President Joe Biden;
`Former President of the United States Dick Cheney;
`U.S. Secretary of State Hilary Clinton;
`U.S. Speaker of the House Nancy Peloski;
`U.S. Chief of Staff Rahm Emanuel;
`Secretary of Defense of U.S. Robert Gates;
`Lt. R. Miller, Jr.;
`J. Sheriff;
`S. Argensta;
`R. Hamilton;
`M. Longenburger;
`C. Tallent; and
`Ofc. B. Harrison,
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`Defendants.
`________________________________________________
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`) Report and Recommendation
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`David Lee Garner (Plaintiff), a federal inmate proceeding pro se, brings this civil rights
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`action against state and federal employees, officials and agencies.1 This matter is before the court
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`pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC. Plaintiff is incarcerated at
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`the United States Penitentiary (USP) in Lewisburg, Pennsylvania, and files this action in forma
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`1 Title 28 U.S.C. § 1915A (a) requires review of a “complaint in a civil action in which a
`prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 2 of 12
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`pauperis under 28 U.S.C. § 1915. Having reviewed the Amended Complaint in accordance with
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`applicable law, the undersigned concludes that it should be summarily dismissed.
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`Pro Se and In Forma Pauperis Review
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`Under established local procedure in this judicial district, a careful review has been made
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`of the pro se Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915; 28
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`U.S.C. § 1915A; the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996);
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`and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v.
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`Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
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`Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th
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`Cir. 1983). As the Plaintiff is a pro se litigant, his pleadings are accorded liberal construction.
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`Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5 (1980); Estelle v. Gamble,
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`429 U.S. 97 (1976).
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` Even under this less stringent standard, however, the undersigned finds and concludes that
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`the pro se Amended Complaint is still subject to summary dismissal. The requirement of liberal
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`construction does not mean that the court can ignore a clear failure in the pleading to allege facts
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`which set forth a claim currently cognizable in a federal district court. Weller v. Dep’t of Soc.
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`Servs., 901 F. 2d 387 (4th Cir. 1990).
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`Background
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`The Court received a pleading from Plaintiff, dated September 29, 2011, which was filed as
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`a Complaint. ECF No. 1. Plaintiff’s Complaint did not clearly name any defendants. Instead,
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`Plaintiff attached a “List of Affiliates” to the pleading, containing dozens of state and federal
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`employees and various governmental agencies. Id. at 3-4. Plaintiff’s Complaint was difficult to
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`2
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 3 of 12
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`decipher, but alleged the “abduction in conspiracy to interfere, tamper with target legal
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`documentation.” Id. at 1. The pleading discussed Plaintiff’s transfer between several federal prisons
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`in July and August, 2011. Id. at 1, 10-12. The Complaint also alleged an assault on Plaintiff by
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`unidentified officers, Plaintiff’s placement in a strip cell and placement in restraints, which allegedly
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`caused injury to Plaintiff’s left hand. Id. at 11-12, 19. As Plaintiff claimed “imminent danger”
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`throughout the pleading, an Order was issued on October 28, 2011, giving Plaintiff an opportunity
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`to submit his claims on a standard complaint form and otherwise bring this case into proper form.
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`ECF No. 5. The Order advised Plaintiff that his claims, and the defendants he intended to name,
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`were unclear. Id. at 2. Thus, Plaintiff was directed to clearly list the defendants in the caption of
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`the complaint form, briefly state the facts of his claim against each of the named defendants, and
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`indicate the relief sought. Id.
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`On November 21, 2011, the Court received and docketed Plaintiff’s proper form documents
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`to include a Motion for Leave to Proceed In Forma Pauperis, ECF No. 7, and an Amended
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`Complaint, ECF No. 8. The Amended Complaint named state and federal courts and governmental
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`officials in the caption and “parties” section, which were added to the Court’s docket as Defendants
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`in this case. ECF No. 8, pages 1-2. However, as in the original Complaint, Plaintiff includes a “list
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`of affiliates” with the Amended Complaint, this time four pages long, containing hundreds of names.
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`Id. at 9-12. The Amended Complaint appears to provide factual allegations regarding only seven
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`individuals from that list, which are added to the Court’s docket by an Order to be filed
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`3
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 4 of 12
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`contemporaneously with this Report and Recommendation.2 The other names in Plaintiff’s “list of
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`affiliates” do not appear on the Court’s docket as defendants in this action.3
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`As in the original pleading, the Amended Complaint alleges claims of mail tampering,
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`specifically, that “legal mail from the court of law is being brought open, when I am to sign for
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`retrieval of and then it being open in my presence as known.”4 ECF No. 8, page 14. The Amended
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`Complaint further alleges “‘imminent danger’ of my life in this terrorism, the co-ercion and
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`orchestration of this in a federal government facility, as in brief of this case ‘conspiracy to obstruct
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`justice.’” Id. at 13. Plaintiff again discusses a strip search and an apparent placement on suicide
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`watch, where Plaintiff “was given a paper shirt and pants.” Id. at 13. However, unlike the original
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`pleading, Plaintiff’s Amended Complaint contains no details regarding any type of assault in
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`connection with his strip search. Plaintiff further complains of placement in a “black box and
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`restraints” in August of 2009, injury to Plaintiff’s left hand in October of 2011, and a “random
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`shakedown” of Plaintiff’s cell on November 4, 2011. Id. at 4, 13- 14. Plaintiff attaches to the
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`Amended Complaint several exhibits to include incident reports from USP Lewisburg in October
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`2 Plaintiff’s “list of affiliates” provides the names of six officers from USP Lewisburg, and one
`officer from USP Hazelton, which are discussed in the body of the pleading. Plaintiff’s claims
`against these individuals are addressed in this Report and Recommendation.
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`3 It is noted that Plaintiff includes “U.S. District Court of South Carolina, Columbia District
`Judge Terry L. Wooten, Magistrate Judge Joseph R. McCrorey” in the “list of affiliates.” ECF No.
`8, page 9. However, Plaintiff provides no factual allegations in the Amended Complaint against
`either of the Judges assigned to this case. Therefore, United States District Judge Terry L. Wooten
`and United States Magistrate Judge Joseph R. McCrorey have not been added as defendants in this
`action.
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`4 Plaintiff alleges that his legal mail has been opened outside of his presence. However, the
`Amended Complaint fails to provide factual allegations to support this bare statement, or identify
`any individual responsible for such actions.
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`4
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 5 of 12
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`and November of 2011, and a radiology report.. ECF No. 8-1. Plaintiff’s radiology report indicates
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`that Plaintiff’s hand was examined on August 26, 2011, subsequent to Plaintiff’s placement in
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`restraints. Id. at 4. However, the report’s conclusion states a negative or “normal” finding. Id.
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`Plaintiff seeks immediate release and monetary damages as relief. 5 ECF No. 8, page 5.
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`Discussion
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`To the extent the Amended Complaint alleges constitutional violations by state officials and
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`agencies, the case is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive
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`rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright
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`v. Oliver, 510 U.S. 266, 271 (1994)(quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).
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`A legal action under § 1983 allows “a party who has been deprived of a federal right under the color
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`of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,
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`707 (1999). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that
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`a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged
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`violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.
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`42, 48 (1988).
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`The Amended Complaint also names officials, employees, and agencies of the federal
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`government. Thus, as it relates to the federal defendants, the Amended Complaint is construed as
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`an action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
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`403 U.S. 388, 397 (1971), which established a direct cause of action under the United States
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`Constitution against federal officials for the violation of federal constitutional rights. Carlson v.
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`5 Habeas corpus is the exclusive remedy for a prisoner who challenges the fact or duration of his
`confinement and seeks immediate or speedier release. See Preiser v. Rodriguez, 411 U.S. 475, 500
`(1973).
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`5
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 6 of 12
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`Green, 446 U.S. 14,18 (1980); see also Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006). A Bivens
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`claim is analogous to a claim brought against state officials under 42 U.S.C. § 1983, therefore,
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`caselaw involving § 1983 claims is applicable in Bivens actions, and vice versa. See Harlow v.
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`Fitzgerald, 457 U.S. 800, 814-820 n. 30 (1982); see also Farmer v. Brennan, 511 U.S. 825 (1994);
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`Bolin v. Story, 225 F.3d 1234, 1241-1242 (11th Cir. 2000); Campbell v. Civil Air Patrol, 131 F.
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`Supp. 2d 1303, 1310 n. 8 (M.D. Ala. 2001)(“[T]he court shall refer interchangeably to cases decided
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`under both § 1983 and Bivens.”).
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`As an initial matter, the Amended Complaint in this case makes no factual allegations against
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`any of the Defendants named in the pleading’s caption or “parties” section. Although the Court
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`must liberally construe the pro se Amended Complaint, Plaintiff must do more than make mere
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`conclusory statements to state a claim. Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995); Adams v.
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`Rice, 40 F.3d 72 (4th Cir. 1994); White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (complaint
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`dismissed because “failed to contain any factual allegations tending to support his bare assertion”).
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`While Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in
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`the Amended Complaint, he must allege facts that support a claim for relief. Bass v. Dupont, 324
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`F.3d 761, 765 (4th Cir. 2003). This Court is not required to develop tangential claims from scant
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`assertions in the complaint. See Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985). The
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`Amended Complaint’s general claim of rights being violated, absent any specific allegations against
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`the Defendants named in the Amended Complaint’s caption or “parties” section is insufficient to
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`state a claim under § 1983/Bivens. Therefore, Plaintiff’s claims are subject to summary dismissal
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`as they relate to: the Supreme Court of the United States; the United States Department of Justice;
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`the United States District Court of Boston, MA; the South Carolina Administrative Law Court; the
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`6
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 7 of 12
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`South Carolina Supreme Court; President Barack Obama; Former Presidents George Bush, Sr., and
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`George W. Bush, Jr.; Vice President Joe Biden; Former [Vice] President Dick Cheney; U.S.
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`Secretary of State Hilary Clinton; U.S. Speaker of the House Nancy Peloski6; U.S. Chief of Staff
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`Rahm Emanuel; and Secretary of Defense Robert Gates.
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`In any event, all of the parties named in the Amended Complaint’s caption and “parties”
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`section are immune from Plaintiff’s claim for damages under § 1983/Bivens. “While Bivens actions
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`allow for recovery of money damages against federal officials . . . Bivens does not allow for recovery
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`of money damages, or suits in general, against the government itself.” Reinbold v. Evers, 187 F.3d
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`348, 355 n.7 (4th Cir. 1999). Under the principle of sovereign immunity, individuals may not sue
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`the United States or its agencies without their consent. See FDIC v. Meyer, 510 U.S. 471, 484-86
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`(1994)(declining to extend Bivens to permit suit against a federal agency); Global Mail Ltd. v. U.S.
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`Postal Serv., 142 F.3d 208, 210 (4th Cir. 1998)(federal governmental entity entitled to sovereign
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`immunity unless Congress waives that immunity and consents to suit). The same is true for suits
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`brought against agency officials in their official capacities. Doe v. Chao, 306 F.3d 170, 184 (4th Cir.
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`2002). As indicated above, the Amended Complaint in this case provides no personal allegations
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`against any of the Defendants named in the pleading’s caption or “parties” section. Thus, it appears
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`that these Defendants are sued for actions taken in their official capacities. Because the United States
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`has not waived sovereign immunity in suits claiming constitutional torts, the Supreme Court of
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`United States, the United States Department of Justice, the United States District Court of Boston,
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`MA, President Barack Obama, former Presidents of the United States George Bush, Sr.,George W.
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`Bush, Jr., Vice President Joe Biden, former [Vice] President Dick Cheney, U.S. Secretary of State
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`6 The correct spelling of this Defendant’s name is Nancy Pelosi.
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`7
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 8 of 12
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`Hilary Clinton, U.S. Speaker of the House Nancy Peloski, U.S. Chief of Staff Rahm Emanuel, and
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`Secretary of Defense Robert Gates are protected from any claim for damages Plaintiff may be
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`asserting pursuant to Bivens. Thus, these Defendants are entitled to summary dismissal from this
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`case.
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`In addition, the United States Supreme Court has recognized the defense of “absolute
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`immunity” for “officials whose special functions or constitutional status requires complete
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`protection from suit.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Included in this list are
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`“legislators, in their legislative functions . . . judges, in their judicial functions . . . and the President
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`of the United States.” Id. (citations omitted); see also Hafer v. Melo, 502 U.S. 21, 29 (1991). As
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`such, the Presidential Defendants Barack Obama, George Bush, Sr., George W. Bush, Jr., and
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`legislative Defendant Nancy Peloski are also protected by absolute immunity from Plaintiff’s claim
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`for damages. See Berkley v. Common Council of City of Charleston, 63 F.3d 295, 300-301 (4th Cir.
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`1995)(recognizing long tradition of granting legislators at all levels of government a broad immunity
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`from suits based upon legitimate legislative activity).
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`Plaintiff also names two South Carolina Courts as Defendants in this action. However, the
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`South Carolina Administrative Law Court and the South Carolina Supreme Court are protected from
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`a suit brought pursuant to § 1983 by the Eleventh Amendment, which forbids a federal court from
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`rendering a judgment against an unconsenting state in favor of a citizen of that state. Edelman v.
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`Jordan, 415 U. S. 651, 663 (1974). State agencies and state instrumentalities share this immunity
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`when they are the alter egos of the state. See Regents of the University of California v. Doe, 519
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`U.S. 425, 429 (1997). As the South Carolina Administrative Law Court and the South Carolina
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`8
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 9 of 12
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`Supreme Court are protected by Eleventh Amendment immunity, these Defendants are also entitled
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`to summary dismissal from the instant action.7
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`Several correctional officers, which do not appear in the caption or “parties” section of the
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`Amended Complaint are discussed in the body of the pleading. Liberally construed, it appears
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`Plaintiff is alleging a claim of cruel and unusual punishment against these correctional officers.
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`Plaintiff claims that “co-conspirators Lt. R. Miller, Jr,. J. Sheriff, S. Argensta, R. Hamilton, M.
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`Longenburger, [and] C. Tallent.” performed a “random shakedown” of Plaintiff’s cell at USP
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`Lewisburg on November 4, 2011. ECF No. 8, page 4. Plaintiff also alleges that he was “double
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`cuffed by Captors in orchestrated ploy of plot then taken to shower by these captors and strip search
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`by R. Hamilton, S. Argensta, [and] J. Sheriff.” Id. at 13.8 Plaintiff further complains of a “decoy
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`informant” being placed in his cell under “false pretense,” and of being “given a paper shirt and
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`pants for the means of suicide.” Id. The name of one other correctional officer employed by USP
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`Hazelton, Ofc. B. Harrison, is listed in connection with Plaintiff’s allegation that he was placed in
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`a “black box” and “4 point restraints” on August 27, 2009. Id. at 14.
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`As a general matter, the Eighth Amendment prohibits punishments which “involve the
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`unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976)(quoting
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`Gregg v. Georgia, 428 U.S. 153, 173(1976)). Thus, under the Eighth Amendment, sentenced
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`7 While the United States Congress can override Eleventh Amendment immunity through
`legislation, Congress has not overridden the states' Eleventh Amendment immunity in § 1983 cases.
`See Quern v. Jordan, 440 U. S. 332, 343 (1979). In addition, a State may consent to a suit in a
`federal district court. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 & n. 9
`(1984). However, the State of South Carolina has not consented to such actions. See S.C. Code
`Ann. § 15-78-20(e).
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`8 It is unclear from the Amended Complaint whether this strip search or Plaintiff’s placement on
`suicide watch also occurred on November 4, 2011, or some time prior to that date.
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`9
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 10 of 12
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`prisoners are entitled to “adequate food, clothing, shelter, sanitation, medical care and personal
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`safety.” Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978),(overruled on other grounds by Bell v.
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`Wolfish, 441 U.S. 520 (1979)); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994). However,
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`the Eighth Amendment “does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337,
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`349 (1981). Further, “[t]o the extent that such conditions are restrictive and even harsh, they are part
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`of the penalty that criminal offenders pay for their offenses against society.” Id. at 347; see also
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`Shakka v. Smith, 71 F.3d 162, 166 (4th Cir.1995); Lopez v. Robinson, 914 F.2d 486, 490 (4th
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`Cir.1990).
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`“In order to establish the imposition of cruel and unusual punishment, a prisoner must prove
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`two elements-that ‘the deprivation of [a] basic human need was objectively sufficiently serious,’ and
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`that ‘subjectively the officials act[ed] with a sufficiently culpable state of mind.’” Shakka v. Smith,
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`71 F.3d at 166 (quoting Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.1993)). “Only extreme
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`deprivations are adequate to satisfy the objective component of an Eighth Amendment claim
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`regarding conditions of confinement.” De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.2003).
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`“[T]o demonstrate such an extreme deprivation, a prisoner must allege a serious or significant
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`physical or emotional injury resulting from the challenged conditions or demonstrate a substantial
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`risk of such serious harm resulting from the prisoner's exposure to the challenged conditions.” Id.
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`(internal quotation marks and citation omitted); see also White v. Gregory, 1 F.3d 267, 269 (4th
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`Cir.1991)(“In Strickler, we held that a prisoner must suffer ‘serious or significant physical or mental
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`injury’ in order to be ‘subjected to cruel and unusual punishment within the meaning of the’ Eighth
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`Amendment.”).
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`10
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 11 of 12
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`In the present case, Plaintiff provides no indication that he has been denied any basic human
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`need. Nor does the Amended Complaint allege any serious injury from Plaintiff’s strip-search,
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`placement on suicide watch, or placement in restraints. In fact, Plaintiff provides a medical report
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`for his allegedly injured hand indicating a “normal” or “negative” finding. As such, Plaintiff’s
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`Amended Complaint fails to state a cognizable Eighth Amendment claim of cruel and unusual
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`punishment. Therefore, the correctional officer Defendants, Lt. R. Miller, Jr., J. Sheriff, S. Argensta,
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`R. Hamilton, M. Longenburger, C. Tallent, and Ofc. B. Harrison, are entitled to summary dismissal
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`from this case.9
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`Recommendation
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`Accordingly, it is recommended that the Amended Complaint in the above-captioned case
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`be dismissed without prejudice.
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`December 15, 2011
`Columbia, South Carolina
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`Joseph R. McCrorey
`United States Magistrate Judge
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`Plaintiff’s attention is directed to the important notice on the next page.
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`9 It is unclear why Plaintiff initiated an action against the correctional officers in this District
`Court as the events giving rise to the allegations did not occur in South Carolina, and none of the
`correctional officers are listed as residents of this State. See 28 U.S.C. § 1391(b). While a Court
`may, in the interest of justice, transfer a civil action to any other district court where it might have
`been brought, see 28 U.S.C. § 1404(a), the Amended Complaint in this case provides insufficient
`factual allegations to support such a transfer.
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`11
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`3:11-cv-02702-TLW Date Filed 12/16/11 Entry Number 12 Page 12 of 12
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`Notice of Right to File Objections to Report and Recommendation
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`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).
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`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:
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`Larry W. Propes, Clerk
`United States District Court
`901 Richland Street
`Columbia, South Carolina 29201
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`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).