Herriott v. Burton
| Decision Date | 31 January 2023 |
| Docket Number | 6:21-cv-00941-DCN |
| Parties | KEVIN E. HERRIOTT, Plaintiff, v. C. BURTON, Warden; T. ROBERTSON, Associate Warden; and L. GRAY, Mailroom Personnel, Defendants. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court on remand from the Fourth Circuit ECF No. 37, to rule on Magistrate Judge McDonald's report and recommendation (the “R&R”) that this matter be dismissed with prejudice for failure to comply with a court order, ECF No. 14. For the reasons set forth below the court dismisses the action without prejudice for failure to state a claim.
Kevin E. Herriott (“Herriott”), a state prisoner proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Specifically, Herriott alleges violations of his First, Eighth, and Fourteenth Amendment rights. ECF No. 1, Compl at 5. Herriott alleges wide-ranging factual allegations to support those claims. First, Herriott claims that on October 16, 2020, defendant mailroom staff personnel L. Gray (“Gray”) began confiscating and destroying the contents of Herriott's legal and personal correspondence. Id. at 7. Herriott alleges, presumably in the alternative, that if the correspondence was not destroyed, it was then confiscated and forwarded to the Correspondence Review Committee (the “CRC”) “under the guise of too many pages violation” and upon the mail's return, Gray seized the correspondence and destroyed its contents without notice. Id. This prevented Herriott from being able to pursue non-frivolous legal claims. Id. at 7-8. Second, Herriott alleges, on behalf of himself and all other inmates in state-wide protective custody (“SWPC inmates”), that they were deprived of “out-of-cell and outside exercise, recreation, daily sun-light exposure, [and] fresh-air” by defendants Warden C. Burton (“Burton”) and Associate Warden T. Robertson (“Robertson”) since approximately August 28, 2020. Id. at 8. Third, Herriott alleges that Burton also deprived SWPC inmates of sufficient telephone use-only allowing them to make one collect phone call per day or two calls per week for free-when the Cares Act in response to COVID-19 gave Burton reasonable discretion to increase telephone usage. Id. at 9. In comparison, the general population inmates at McCormick Corrections in dormitories F1, F2, F2, and F4 were permitted outdoor recreation and “back to back calling.” Id. at 9-10. Herriott also alleges that he sustained injuries-“chest pains, knee pain, ankle pain, legs [sic] soreness, back pain, hip pain, depression, anxieties, mental anguish, stress, and shortness of breath”-presumably related to the events alleged. Id. at 12.
Herriott filed his complaint on March 31, 2021. Compl. Herriott's complaint was referred to Magistrate Judge Kevin F. McDonald for review in accordance with 28 U.S.C. § 1915A and pursuant to Local Civil Rule 73.02(B)(2) (D.S.C.). On April 28, 2021, the magistrate judge issued an order warning Herriott that the complaint was subject to summary dismissal and advising Herriott that he could attempt to address certain pleading deficiencies by filing an amended complaint within fourteen days. Herriott did not file an amended complaint by the deadline, prompting the magistrate judge to issue an R&R recommending that the action be dismissed under Fed.R.Civ.P. 41(b) with the finding that the legal merits of Herriott's complaint warranted summary dismissal. ECF No. 14. Herriott filed objections to the R&R on June 4, 2021. ECF No. 16. Based on the recommendation of the magistrate judge, the court dismissed the complaint under Fed.R.Civ.P. 41(b) for failure to follow a court order. ECF No. 23 (adopting ECF No. 14). Herriott appealed, and on October 25, 2022, the United States Court of Appeals for the Fourth Circuit vacated and remanded the court's decision. ECF No. 37. The Fourth Circuit found that since the District Court did not resolve the factual question of whether Herriott received timely notice of the magistrate judge's April 28th order, the Fourth Circuit was unable to determine whether the court properly exercised its discretion in dismissing the action under Rule 41(b). Id. at 2. Further, the Fourth Circuit found that though the district court expressed its agreement with the magistrate judge's legal analysis on the merits, the court did not expressly base the dismissal on those grounds. Id. at 2-3. The Fourth Circuit vacated and remanded the order to the district court for further proceedings consistent with the Fourth Circuit's decision. ECF No. 38.
Following the Fourth Circuit's remand order, the court now resolves the factual question of whether Herriott received timely notice, reviews whether the complaint should be dismissed under Rule 41(b), and evaluates the merits of Herriott's claims.
Herriott filed his complaint 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. 25, 31 (1992); Wilcox v. Brown, 877 F.3d 161, 166 (4th Cir. 2017) (). 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, 327 (1989).
“Pro se complaints and pleadings, however inartfully pleaded, must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers.” Alley v. Yadkin Cnty. Sheriff Dep't, 698 Fed.Appx. 141, 142 (4th Cir. 2017) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Liberal construction is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues. Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (quotation marks and citations omitted). The “complaint should not be dismissed for failure to state a claim unless after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Id. (internal quotation marks and citations omitted).
“‘[C]laims of legal substance should not be forfeited because of a failure to state them with technical precision,' and where a claim is potentially cognizable, the plaintiff should be afforded an opportunity to amend his complaint or particularize his allegations.” Alley, 698 Fed.Appx. at 142 (quoting Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965)).
Although a district court “is not required to act as an advocate for a pro se litigant,” where the litigant “has alleged a cause of action which may be meritorious against a person or persons unknown, the district court should afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court.” Gordon v. Leeke, 574 F.2d 1147, 1152-53 (4th Cir. 1978). Accordingly, even when a plaintiff fails to allege sufficient facts against a particular defendant to survive a Rule 12(b)(6) motion, where “the district court neither gave [the plaintiff] the opportunity to amend nor did it engage in any discussion as to why amendment would be futile,” the dismissal “should generally be without prejudice.” King v. Rubenstein, 825 F.3d 206, 225 (4th Cir. 2016).
As discussed above, the court is tasked on remand with first determining the factual issue of whether Herriott received the magistrate judge's April 28th order instructing him the complaint was subject to summary dismissal should it not be amended. If Herriott received the mail and failed to amend his complaint, dismissal pursuant to Fed.R.Civ.P. 41(b) was appropriate. On remand, the court finds that either answer to the factual question of whether Herriott timely received notice of the April 28th order results in the same result. Thus, the court construes the facts in Herriott's utmost favor and accepts as true Herriott's allegations that he did not receive notice of the April 28th order to amend his complaint. Upon doing so, the court then evaluates the merits of Herriott's claims and finds them to be without merit. The court does not consider new arguments raised by Herriott in his objections to the R&R.[1] See ContraVest Inc. v. Mt. Hawley Ins. Co., 273 F.Supp.3d 607, 620 (D.S.C. 2017) () (internal citation omitted and alteration in original). The court therefore dismisses the complaint-expressly resting its dismissal on the failure to state a cognizable claim for relief. The court explains below.
The court has been tasked with resolving whether Herriott received his mail and thus had notice of his limited window to amend his defective complaint. At issue is the April 28th order, ECF No. 6, which informed Herriott of his need to amend his complaint. If he received...
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