Opinion
C/A No. 4:19-3587-JFA-TER
05-06-2020
Reginald Brown, #00264654, a/k/a Niccolo Don Emperor, #264654, Plaintiff, v. D. Boccabello, K. Conrad, Mr. Lewis, Susan Duffy, P. Phillips, Steve McCarthy, C. Hindburg, R.L. Turner, Mr. Bennette, Ms. S. Williams, John Stirling, General Counsel, Willie Davis, Defendants.
Report and Recommendation
This is a civil action filed by a state prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned 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).
STANDARD OF REVIEW
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 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); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
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," "is frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). 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. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be 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 plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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, 390-91 (4th Cir.1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
On March 24, 2020, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 6). Plaintiff failed to file an Amended Complaint and the deficiencies remain. Thus, the action is subject to summary dismissal.
Plaintiff alleges his Fifth, Fourteenth, and Eighth Amendment rights were violated in July and December of 2019. Plaintiff makes several allegations regarding his DHO proceedings and incidents related to his DHO proceeding. Plaintiff alleges that multiple persons did not document on the incident report that he was a mental health patient. There is no constitutional right to such. Further, Plaintiff's mental health issues as related to the DHO hearing and Plaintiff's issues with his substitute counsel at the hearing matters not because Plaintiff was not deprived of a protected liberty interest, as discussed below. Plaintiff alleges his grievances were not properly investigated. Plaintiff alleges he filed complaints for medical attention regarding being cuffed too tight but does not name a person in such allegations. Plaintiff's request for relief is institutional charges overturned and removed from his record and monetary damages for emotional distress. (ECF No. 1).
Plaintiff alleges constitutional right violations that arose out of his disciplinary hearing. Constitutional due process rights are only at issue when the prisoner is deprived a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). Plaintiff alleges the result of the alleged due process right violations was a loss of canteen and visitation privileges. Canteen privileges is not a protected liberty interest. "There is simply no freestanding constitutional right to canteen privileges at all." Bennett v. Cannon, C/A No. 2:05-2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006); Starling v. Stirling, No. CV 4:15-3636-TLW-TER, 2016 WL 4697357, at *6 (D.S.C. Aug. 2, 2016), report and recommendation adopted, 2016 WL 4613396 (D.S.C. Sept. 6, 2016); see, e.g., Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997) (holding that commissary restrictions did not entitle inmate to due process protections during disciplinary proceeding); Moore v. Ozmint, No. CIV.A. 3:10-3041-RBH, 2012 WL 762460, at *10 (D.S.C. Feb. 16, 2012), report and recommendation adopted, 2012 WL 762439 (D.S.C. Mar. 6, 2012). Plaintiff does not have a constitutional right to visitation and it is not a protected liberty interest. See White v. Keller, 438 F. Supp. 110, 115 (D. Md. 1977), aff'd, 588 F.2d 913 (4th Cir. 1978). Neither convicted prisoners nor their family members have an inherent constitutional right to visitors because "[a]n inability to receive visitors is not atypical and unusually harsh compared to the ordinary circumstances contemplated by a prison sentence." Africa v. Vaughn, 1996 WL 65445 at *1 (E.D.Pa.1996) (collecting cases); see also Sandin v. Conner, 515 U.S. 472, 483 (1995); Ozolina v. Durant, 1996 WL 82481 at *1 (E.D.Pa.1996) (under Sandin, "there is no right to visitation protected by the Due Process Clause"); cf. Byrd v. Pittman, 1995 WL 434453 (D.D.C., July 1995) (no constitutional right to visitation at Lorton Reformatory [District of Columbia's Prison] because denial of visitation does not concern a protected liberty interest, and revocation of visitation will not affect duration of plaintiff's sentence); Allah v. Burt, 2010 WL 476016, at *6 (D.S.C. Feb. 3, 2010). Public records show the resulting punishment from the alleged incident in July 2019 was loss of canteen and visitation. Constitutional due process rights are not at issue here because Plaintiff was not deprived of a protected liberty interest.
Plaintiff sues Duffy, Williams, and Hindburg regarding grievances. To the extent Plaintiff is suing in regard to the SCDC grievance process against any defendants here, there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Plaintiff sues SCDC General Counsel. There are no factual allegations in the Complaint as to this Defendant. If Plaintiff is suing this defendant in relation to the grievance process, Plaintiff has not stated a plausible claim.
Plaintiff complains that he wrote multiple requests for classification changes. Prisoners do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Meachum v. Fano, 427 U.S. 215, 225 (1976). Federal courts are required to accord great consideration to a correctional system's need to maintain order, discipline, and control, and the choices of where and how to confine Plaintiff are a determination made by the correctional system and not the courts. See Wolff v. McDonnell, 418 U.S. 539, 558-62 (1974). An inmate does not have a constitutional right to be confined in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See Olim v. Wakinekona, 461 U.S. 238, 245-48 (1983). Plaintiff fails to state a claim of constitutional magnitude as to his claims regarding classification.
Further, as to Warden Lewis, Associate Warden Duffy, Major Bennett, Regional Director Davis, and Director Stirling, there are no facts alleged as to personal involvement that rise to a level of constitutional magnitude and supervisory liability is generally not available in a § 1983. In a § 1983 action, Plaintiff must allege that an individually personally acted in alleged violations. Generally, vicarious liability or respondeat superior is not available to a § 1983 plaintiff as a method to create liability of a state-actor supervisor for the acts of his subordinate. See Monell v. Dep't Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition as long as the facts alleged meet the Fourth Circuit Court of Appeal's three-part test for supervisor 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;Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)(citations omitted); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984).
(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.
As to several defendants, there are no allegations regarding personal involvement that would support an allegation of a constitutional violation, as discussed above. In order to assert a plausible § 1983 claim against any particular state actor, a "causal connection" must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id. Defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved." Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id. Plaintiff has failed to allege facts to state an actionable claim of constitutional magnitude as to all named Defendants.
Plaintiff failed to cure deficiencies in the Complaint and was already given notice and opportunity to file an Amended Complaint and failed to avail himself of the opportunity. Deficiencies persist in the Complaint, and thus, Plaintiff's action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to 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 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff had an opportunity to amend and has failed to cure deficiencies by filing an Amended Complaint.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge May 6, 2020
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next 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 2317
Florence, South Carolina 29503
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).