KAYMANI D. WEST, Magistrate Judge.
This is a civil action filed pro se by a state prison inmate. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § § 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
Billy Lee Lisenby, Jr. ("Plaintiff") alleges that many of his federal constitutional rights and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 (covering discrimination by public entities), were violated by the alleged lack of consideration the South Carolina Parole Board (the "Parole Board") gave to his parole application in March 2014. ECF No. 1-1 at 2. He cites to 42 U.S.C. §§ 1981, 1983, 1985, 1986 and the ADA as the basis for his claims. ECF No. 1-1 at 1.
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § § 1915, 1915A, and the Prison Litigation Reform Act of 1996, and 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 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630n.1 (4th Cir. 2003). Nevertheless, 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. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Even under this less stringent standard, the Complaint filed in this case is subject to partial summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B).
Plaintiff fails to state any plausible claims against Defendant "the Parole Board," and, accordingly, the Complaint should be partially summarily dismissed insofar as it seeks to hold this Defendant liable for any of the alleged constitutional or federal statutory violations which Plaintiff contends occurred in connection with his parole hearing. First, to state a plausible claim for relief under 42 U.S.C. § 1983,
Plaintiff has not stated any plausible §1981 or § 1985 claims against the Parole Board because there are no allegations that any of the alleged constitutional violations in Plaintiff's parole proceedings were the result of racial-, gender-, or national-origin-based discrimination. See Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995) ("Under section 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.") (emphasis added, citations omitted); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 69 (6th Cir. 1985) (§ 1981) ("It is well settled that an action based upon 42 U.S.C. Section 1981 requires the plaintiff to demonstrate that the defendants intentionally discriminated against her on the basis of race."); see also Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 388-89 (1982) (§ 1981 requires allegations and proof of racial discrimination). Additionally, because Plaintiff has stated no plausible § 1985 claim in his Complaint, he cannot state a plausible § 1986 claim because § 1986 is derivative of § 1985. The statute itself makes this dependent relationship clear, and that no claim will lie under § 1986 unless a valid claim has first been established under § 1985. See Farese v. Scherer, 342 F.3d 1223, 1232 n.12 (11th Cir. 2003); Stephenson v. Ellis, No.3:11 cv418/MCR/CJK, 2013 WL 1197723, *5 (N.D. Fla. Jan. 25, 2013) (collecting cases; § 1986 is derivative of § 1985).
Additionally, insofar as Plaintiff's attempt to assert an ADA claim against Defendants is concerned, no plausible "individual capacity" ADA claim is stated against any Defendant because the ADA does not impose individual liability on employees or officials of a public entity.
Finally, no plausible §§ 1981, 1985, 1986 claims are stated against either Defendant Thomas or Defendant Patton because, as previously noted, there are no allegations of race-based discrimination against any Defendant. See Simmons v. Poe, 47 F.3d at 1376-77; see also Farese v. Scherer, 342 F.3d at 1232 n.12. Further, no plausible § 1983 individual-capacity claims have been stated against either Thomas or Patton because there are no allegations of personal involvement by these two apparently supervisory employees of SCDPPPS. It is settled that in order to assert a viable § 1983 claim against any particular public official, a "causal connection" or "affirmative link" must exist between the conduct of which the plaintiff complains and the official sued. See Kentucky v. Graham, 473 U.S. 159 (1985); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). Plaintiff does not allege these Defendants hold supervisory roles at SCDPPS.
There is a limited exception to the prohibition against imposing respondeat superior or vicarious liability on supervisory personnel in § 1983 cases, which has been enunciated in cases such as Slakan v. Porter, 737 F.2d 368, 370-75 (4th Cir. 1984). Supervisory officials like Defendants Thomas and Patton may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates so long as the facts alleged satisfy the Fourth Circuit Court of Appeals' established three-part test for supervisory liability under § 1983: "(1) that the supervisor had actual or constructive knowledge that his 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." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted). In Randall v. Prince George's County, 302 F.3d 188, 206 (4th Cir. 2002), the Fourth Circuit concluded that, "[u]nder the first prong of Shaw, the conduct engaged in by the supervisor's subordinates must be `pervasive,' meaning that the `conduct is widespread, or at least has been used on several different occasions.'" Furthermore, in establishing "deliberate indifference" under Shaw's second prong, a plaintiff "[o]rdinarily ... cannot satisfy his burden of proof by pointing to a single incident or isolated incidents ... for a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct." Id. (quoting Slakan, 737 F.2d at 373).
The Slaken exception is not adequately pleaded in this case because there are no allegations that either Defendant Thomas or Defendant Patton had any personal knowledge of the constitutional violations that Plaintiff alleges he encountered in his appearance before the South Carolina Parole Board. In fact, neither of these two Defendants is mentioned at all in Plaintiff's allegations, much less are they alleged to have had personal knowledge of or involvement with the Parole Board's actions. Thus, regardless of how serious the alleged due-process violations might have been in Plaintiff's parole-hearing process, neither Thomas nor Patton, in their individual capacities, can be found liable for them simply based on their jobs as a "supervisors" at SCDPPPS.
In conclusion, Plaintiff's Complaint fails to state any plausible claims against Defendant "the Parole Board," and fails to state any plausible "individual capacity" damage claims against Defendant Thomas or Defendant Patton. As a result, the Complaint should be partially summarily dismissed insofar as it purports to raise such claims. However, Plaintiff's allegations, liberally construed, are sufficient to state facially plausible official-capacity claims for prospective declaratory and injunctive relief against Defendant Thomas and Defendant Patton under the ADA and § 1983. The Complaint should be served on Defendants Thomas and Patton with directions that they respond only to the § 1983 and ADA claims seeking declaratory and prospective injunctive relief. See Brown v. Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
IT IS SO RECOMMENDED.