Opinion
Civil Action 4:21-cv-4053-TMC-TER
07-18-2023
DEMETRIUS ALEXANDER BROWN, Plaintiff, v. SHERIFF ANTHONY DENNIS, CHIEF GARDNER, DIRECTOR RAY, and MAJOR LUMPKIN, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his Constitutional rights. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 73). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his claims dismissed. Plaintiff filed a Response (ECF No. 78) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff's allegations in this action arise from his four-month pretrial detention at the Sumter Detention Center (SDC). Upon his conviction for murder, he was transferred to the custody of the South Carolina Department of Corrections (SCDC) on February 22, 2022, and was no longer housed at the SDC. Lumpkin Aff. ¶ 4 (ECF No. 73-3). Plaintiff's amended complaint alleges violations of his equal protection and due process rights with respect to the visitation policy and the prices charged for products sold at the commissary. Specifically, Plaintiff alleges that the Sheriff instituted a new visitation policy in October of 2021, which canceled all weekend and holiday visitation, and also canceled contact visits, which he claims violated his due process rights. He further alleges that the remaining Defendants allowed the violations to occur. Plaintiff also alleges that the change to the visitation policy only applied to inmates in B pod, which is one of the pods that houses maximumsecurity inmates. Plaintiff alleges he missed two visitation dates, November 25, 2021, and December 12, 2021, as a result of this policy.
With respect to visitation, Defendant Chief Gardner, the Chief Deputy for the Sheriff of Sumter County, avers that changes to policies and procedures of the SDC are initiated by the SDC executive staff and approved by the Sheriff's office. Gardner Aff. ¶ 3 (ECF No. 73-2); Ray Aff. ¶ 3 (ECF No. 73-4). He avers that neither he nor Defendant Sheriff Dennis had any involvement in the issues alleged in Plaintiff's amended complaint. Gardner Aff. ¶ 5; Ray Aff. ¶ 3. The SDC staff sets the policy for inmate visitation based on Minimum Standards, their staffing, and the disciplinary history of each inmate. Gardner Aff. ¶ 6. With the onset of the COVID-19 pandemic, the South Carolina Department of Corrections stopped all visitation, and the decision was adopted and confirmed by SDC staff in consultation with the Sheriff's office. Gardner Aff. ¶ 7; Lumpkin Aff. ¶ 15; Ray Aff. ¶ 11. In 2021, technology was purchased to allow for video visits only to continue to protect the health and safety of inmates and staff, but due to technology and staffing shortages, such visitation for all inmates was allowed only during the weekday and not on weekends or holidays. Gardner Aff. ¶¶ 8-9; Lumpkin Aff. ¶ 16; Ray Aff. ¶ 12.
Defendant Major Lumpkin, Deputy Major of the Sumter County Sheriff's Office and Assistant Director at the SDC, and Defendant Director Ray, Director of the SDC, aver that Minimum Standards provide that inmates shall have at least one hour of visitation per week but provides that restrictions on visitation can be based on safety and security concerns at the detention center. Lumpkin Aff. ¶ 13; Ray Aff. ¶ 9. Lumpkin and Ray aver that each inmate, whether in open pods or closed pods, can have two video visits per week. Lumpkin Aff. ¶ 16; Ray Aff. ¶¶ 12-13. Lumpkin and Ray further aver that Plaintiff's allegation that contact visits were stopped for maximum security inmates but not for general population inmates is not true. Lumpkin Aff. ¶ 19; Ray Aff. ¶ 15. They aver there has been no contact allowed between any inmates and visitors for many years due to safety concerns first about contraband and, later, due to COVID-19. Lumpkin Aff. ¶ 20; Ray Aff. ¶ 16. The dates about which Plaintiff complains-November 25, 2021, and December 12, 2021-were Thanksgiving and a Sunday, respectively, and, thus, visitation would not have been allowed on those days. Lumpkin Aff. ¶ 21; Ray Aff. ¶ 17. Neither Lumpkin nor Ray has any knowledge of Plaintiff being denied visitation during normal visitation hours. Lumpkin Aff. ¶ 21; Ray Aff. ¶ 18. Plaintiff alleges that his family works Monday through Friday from 8 am to 5 pm and, thus, cannot schedule visits on weekdays, which must occur between 9:00 am and 4:10 pm. Am. Compl. p. 14 (ECF No. 10). Plaintiff includes with his response a Resident Request Report, in which he stated his visits with his mother on holidays and weekends were canceled even though other detainees were allowed visitation on the same dates. See Resident Request Report (ECF No. 78-1, p. 4). Captain Sweat responded to Plaintiff's complaint by stating “at this time Charlie and Bravo pods will not be receiving visits on Saturdays or Sundays.” Id.
With respect to the commissary, Plaintiff alleges that Defendants allowed the company that provides commissary services for the SDC by contract to charge prices in excess of the fair market value of the products they sold. Gardner avers that the Sheriff's office relies on the SDC executive staff to pick a commissary provider to be approved by the Sheriff's office. Gardner Aff. ¶ 11. The prices are set by the commissary provider and reviewed by the SDC executive staff and the Sheriff's office to confirm they are competitive in the industry. Gardner Aff. ¶ 12; Lumpkin Aff. ¶ 24; Ray Aff. ¶ 21.
Lumpkin avers that, when reviewing the complaint and “doing a quick market analysis,” the amounts Plaintiff complains about being charged are actually below fair market value:
For example, he claims a 3-ounce bag of chili ramen noodle is $.30 and he is charged $1.00. However, a quick review of Wal-Mart in Sumter shows it costs over $.90 per bag for that exact item when buying it with a quantity discount. He also claims he is charged $6.25 for a 3-ounce bag of Keefe 100% Colombian instant coffee, and he claims it should be only $1.00. Once again, while I could not find this item at Wal-Mart or Dollar General in Sumter, Amazon is selling this item for $16.73. He next claims that a men's thermal top at Wal-Mart costs $5.00 and he was charged $9.10. While this type of item varies greatly in price, the price range for basic similar items at Wal-Mart in Sumter was between $11.00 and $13.00. He claims he was charged $4.75 for a pair of white boxers, and he claims he could buy them at Wal-Mart for $7.50 for a three pack. However, the prices for this item at Wal-Mart in Sumter are actually between $4.00 and $14.00 per item. Finally, he claims he was charged $1.00 for a single packet of Wyler's Lemonade drink mix and he believes he could buy it for $1.00 for a pack of ten. While the prices vary depending on the flavor, size of the packet and volume purchased, Wal-Mart in Sumter is selling these items for $7.82 for an 8 pack, which of course comes to $.98 per packet.Lumpkin Aff. ¶ 27. Lumpkin also avers that prices in general have fluctuated due to availability, especially after the beginning of the pandemic, which caused problems with supply chain and manufacturing issues. Lumpkin Aff. ¶ 28; Ray Aff. ¶ 23. Plaintiff also complains that inmates are unfairly charged for hygiene products. Lumpkin and Ray aver that inmates who are indigent do not pay for such products, but inmates who have money in their accounts are charged a “minimal charge” for them. Lumpkin Aff. ¶ 30; Ray Aff. ¶ 24. In his response, Plaintiff presents the “fair market values” for ramen noodles as $0.25 to $0.50 per pack and for drink mix as $1.00 to $3.19 per box, with approximately 8 individual packets per box. See Pricing (ECF No. 78-1 pp. 7-13).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff alleges that Defendants violated his due process and equal protection rights. Section 1983 “‘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, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal 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, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). As stated above, Plaintiff alleges violations of his constitutional rights, and it is undisputed that the individual Defendants were acting under color of state law at all relevant times.
A. Supervisory Liability
As an initial matter, Defendants argue that they cannot be liable for any alleged constitutional violations merely in their supervisory capacities. Plaintiff alleges that Defendants initiated the alleged violative policies regarding visitation and allowed the commissary contractor to charge unfair prices, but he does not allege any personal involvement on the part of these Defendants other than claiming that Lumpkin improperly responded to a grievance. “Liability under § 1983 attaches only upon personal participation by a defendant in the constitutional violation.” Sloan v. Moore, No. CV DKC-23-527, 2023 WL 3726919, at *3 (D. Md. May 30, 2023). It is well established that the doctrine of respondeat superior does not apply in § 1983 claims. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability under § 1983). Liability of supervisory officials “is not based on ordinary principles of respondeat superior, but rather is premised on ‘a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.'” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)).
“[I]nmates have no constitutional entitlement or due process interest in access to a grievance procedure. An inmate thus cannot bring a § 1983 claim alleging denial of a specific grievance process” or an improper or negligent grievance response. Booker v. S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017).
Plaintiff fails to present competent evidence to create an issue of fact regarding any Defendant's personal involvement in the alleged denial of visitation on the two dates presented by Plaintiff. He does present evidence that Captain Sweat was aware of the denied visitations after the second denial but no evidence that any of the named Defendants participated in or had any knowledge of the denial of his visitation or of his family's work schedule conflict with regular visiting hours. It is undisputed that at least B and C pods were not allowed weekend visitation during the time of the two visits about which Plaintiff complains. To the extent the minimum standards call for accommodation for visitors working during regular visitation periods, again, there is no evidence that these Defendants were aware of this need.
Regarding commissary pricing, Plaintiff fails to show Defendants' personal participation or knowledge of particular pricing. The record reflects that the executive staff and the sheriff's office chooses the commissary provider and reviews the pricing set by the provider but fails to show particular knowledge or personal involvement by these Defendants.
Liability under § 1983 is “personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (internal citation omitted). Thus, a § 1983 claim requires specific, factual evidence about each defendant's personal involvement. See Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017). Here, no such evidence exists. Accordingly, summary judgment is appropriate in this case. However, further discussion of Plaintiff's claims is set forth below.
B. Visitation
1. Due Process
Plaintiff alleges that his due process rights were violated when he was denied visitation with his mother on two occasions, one of which fell on a holiday and one on a weekend. “Due process contains both substantive and procedural components. Procedural due process prevents mistaken or unjust deprivation, while substantive due process prohibits certain actions regardless of procedural fairness.” Snider Int'l Corp. v. Town of Forest Heights, 739 F.3d 140, 145 (4th Cir.2014). It appears that Plaintiff is raising a procedural due process claim based on the denial of weekend and holiday visitation in violation the South Carolina Minimum Standards for Local Detention Facilities (the Minimum Standards), which he argues is a state-created liberty interest in visitation. Procedural due process protections can arise from state-created liberty interests, though substantive due process protections cannot. Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015) (“The Supreme Court has long recognized that a prisoner may have a state-created liberty interest in certain prison confinement conditions, entitling him to procedural Due Process protections.”); Hawkins v. Freeman, 195 F.3d 732, 748 (4th Cir.1999) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985)) (holding that “while liberty interests entitled to procedural due process protection may be created by state law as well as the Constitution itself, those entitled to substantive due process protection (whatever the procedures afforded) are ‘created only by the Constitution'”). To demonstrate a procedural due process violation, a plaintiff must show that he has a constitutionally protected property or liberty interest, and that he was deprived of that interest by the state without due process of law. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Tri Cty. Paving, Inc. v. Ashe County., 281 F.3d 430, 436 (4th Cir.2002).
Generally, detainees do not have a constitutional right to visitation, Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 461 (1989), or to contact visits, Block v. Rutherford, 468 U.S. 576, 589 (1984).
Whether or not there were other successful visitations is not apparent from the record. Cf. Young v. Williams, No. 8:19-cv-2535-SAL-JDA, 2020 WL 847498, (D.S.C. January 9, 2020) (finding denial of visitation on two occasions not rising to a constitutional level where other visitations were held).
A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word “liberty,” see, e.g., Vitek v. Jones, 445 U.S. 480, 493-494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution), or it may arise from an expectation or interest created by state laws or policies, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (liberty interest in avoiding withdrawal of state-created system of good-time credits).
As stated above, Plaintiff claims that the Minimum Standards create the liberty interest at issue here.
Plaintiff relies on the following standard:
2031 Visiting
Each facility shall develop and implement an inmate visiting plan which shall include the following:
(a) A minimum of one (1) hour per week of visitation per inmate shall be permitted. Restrictions on visitation should not be imposed unless such privileges have been suspended and/or restricted based on legitimate government interests related to the safe and secure operation of the facility; to prevent continued criminal activities; or other similar concerns.
...
(c) Special visiting hours and arrangements shall be made available for visitors who have transportation problems, who have handicaps, or who are working on regular visiting days.Minimum Standards (ECF No. 78-1, p. 5).
The Fourth Circuit has addressed the standard for establishing a liberty interest based on state policy such as the Minimum Standards. See Desper v. Clarke, 1 F.4th 236 (4th Cir. 2021). In Desper, the court provided that for the plaintiff to locate a protected liberty interest in a specific operating procedure,
he must show that the Operating Procedure creates an “objective expectation” in the liberty interest “in such a way that an inmate could reasonably expect to enforce it against prison officials.” That objective expectation can be created by “substantive predicates” that “guide” or “limit” official discretion and that use “explicitly mandatory language” such that “a particular outcome must follow” if those predicates are satisfied. Moreover, if the regulation is shown to be sufficiently mandatory, Desper would also have to show that deviating from that procedure “imposes atypical and significant hardship on him in relation to the ordinary incidents of prison life.” Satisfying these requirements is a difficult task, and intentionally so.Id. at 247 (internal citations omitted).
Plaintiff asserts that the use of mandatory language, such as “shall” creates an objective expectation in the “rights” established in the standard. However, while the standard states that a minimum of one hour of visitation per inmate per week “shall be permitted” and that special visiting hours “shall be made available” for visitors who are working on regular visiting days, it provides discretion afforded to prison officials by stating that restrictions on or suspension of visitation can be imposed “based on legitimate government interests related to the safe and secure operation of the facility; to prevent continued criminal activities; or other similar concerns.” Id. Use of the word “shall” is limited by allowing for discretion in the implementation of the visitation based on circumstances. In addition, the standard itself describes visitation as a “privilege” rather than a right. See Mimimum Standards (“Restrictions on visitation should not be imposed unless such privileges have been suspended and/or restricted based on legitimate government interests related to the safe and secure operation of the facility.” (Emphasis added); Desper, 1 4th at 247 (finding that the operating procedure at issue did not confer a liberty interest on any inmate because “it lacks the necessary substantive predicates that guide official discretion, as it treats visitation as ‘a privilege'”).
[C]ourts must “accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003); see also Lovelace v. Lee, 472 F.3d 174, 199 (4th Cir. 2006) (holding that courts “must accord deference to the officials who run a prison, overseeing and coordinating its many aspects, including security, discipline, and general administration”).
Clearly, part of the language in the Minimum Standards creates an “objective expectation” that visitation “shall” be allowed provided the privilege has not been restricted or suspsended.
However, as stated above, the Minimum Standards describes visitation as a “privilege” and limits it when suspended and/or restricted based on legitimate governmental interests related to the safe and secure operation of the facility and other reasons. It is not difficult to imagine or conceive of numerous governmental interests that could satisfy this legitimacy test, including the recent COVID pandemic. Further, it is not difficult to conceive of circumstances where a legitimate governmenal interest exists but would not been known to or disclosed to a detainee. Because of the broad discretion reserved to jail officials, the Minimum Standards do not create an “objective expectation” that a detainee “could reasonably expect to enforce it against prison officials.” See Desper, 1 F.4th at 247.
Even where the language of a state policy or regulation is sufficiently mandatory, Desper notes that a plaintiff must still show that deviating from the “mandatory” language “imposes atypical and significant hardship on him in relation to the ordinary incidents of prison life” id. (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). However, Desper involved a convicted inmate. See id. at 239. As set forth above, Plaintiff was a pretrial detainee while he was detained at the SDC. The Fourth Circuit Court of Appeals has held that the “atypical and significant hardship” standard set forth in Sandin, does not govern the procedural due process claim of pretrial detainees such as Plaintiff. See Dilworth v. Adams, 841 F.3d 246, 251 (4th Cir. 2016) (citing Jacoby v. Baldwin Cty., 835 F.3d 1338, 1348-49 (11th Cir. 2016); Hanks v. Prachar, 457 F.3d 774, 776 (8th Cir. 2006) (per curiam); Suprenant, 424 F.3d at 17; Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 n.12 (10th Cir. 2005); Benjamin v. Fraser, 264 F.3d 175, 188-89 (2d Cir. 2001); Rapier v. Harris, 172 F.3d 999, 1004-05 (7th Cir. 1999); Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996)). Instead, in Dilworth, the Fourth Circuit held that a pretrial detainee is entitled, under Bell, to procedural due process in connection with any “punishment” imposed on him by a correctional facility. See 841 F.3d at 252.
The Supreme Court held in Bell v. Wolfish, that pretrial detainees retain a liberty interest in freedom from “punishment,” even while they are detained to ensure their presence at trial. Dilworth, 841 F.3d at 251 (quoting 441 U.S. 520, 535-37 (1979)). Though “[l]oss of freedom of choice and privacy are inherent incidents” of pretrial detention, discrete “punitive measures” imposed during pretrial detention intrude on a protected liberty interest. Dilworth, 841 F.3d at 251 (quoting Bell, 441 U.S. at 537); Surprenant v. Rivas, 424 F.3d 5, 17 (1st Cir. 2005) (“Pretrial detainees, unlike convicts, have a liberty interest in avoiding punishment[.]”); Martin, 849 F.2d at 870 (finding pretrial detainees are protected with respect to “any form of ‘punishment' ”) (emphasis in original).
The Bell court held that there is a distinction between “punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may.” Id. at 537. The Bell court defined “regulatory restraints” to include administrative measures used to maintain security and order. Id. at 540. Therefore, this court must determine whether Plaintiff's denial of visitation on weekends and holidays constitutes “punishment” within the meaning of Bell or a regulatory restraint. That a “disability is imposed for the purpose of punishment” may be clear from “an expressed intent to punish on the part of detention ... officials[.]” Id. at 538. If it is not, then a court still may infer an intent to punish if a “restriction or condition is not reasonably related” to some other legitimate goal. Bell, 841 U.S. at 539; see Martin, 849 F.2d at 870 (to establish that a restriction is “punishment,” a pretrial detainee must show “either that it was (1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective”); Slade v. Hampton Rds. Reg'l Jail, 407 F.3d 243, 251 (4th Cir. 2005) (same).
This applies for pretrial detainees “whether there is an independent constitutional right to visit, a state-created right to visit, or a state constitutional right to visit.” See Visiting as protection from punishment, 3 Rights of Prisoners § 13:7 (5th ed.).
Defendants argue that the limitations on visitation to video visitation only during weekdays, which they assert were the same for all detainees, were reasonably related to the legitimate, nonpunitive purposes resulting from staffing shortages, technology issues, and health and safety concerns. Specifically, Defendants aver that the technology for video visits, which was managed by a third-party administrator, does not allow weekend/holiday visits. Lumpkin Aff. ¶ 16, 18; Ray Aff. ¶¶ 12, 14. In addition, they aver that staffing issues have also caused visitation to be limited as the SDC lost a number of staff during the COVID-19 pandemic. Thus, movement of detainees had to be limited on second shift as well as weekends and holidays due to staffing shortages. Lumpkin Aff. ¶ 17; Ray Aff. ¶ 13. However, as discussed above, there is conflicting evidence in the record as to whether these limitations applied to all inmates or only to detainees in Bravo and Charlie pods, which are the closed cell pods housing maximum security inmates, as indicated by Captain Sweat in response to Plaintiff's complaint. Viewing the facts in the light most favorable to Plaintiff, the limitations only applied to maximum security inmates. However, Plaintiff does not argue that this punishment was limited to him alone but, rather, to all detainees in his pod. As such, to the extent the visitation limitations could be considered punishment, they were part of the conditions of Plaintiff's placement into maximum security rather than a separate punishment levied against him. Lumpkin avers that Plaintiff was originally placed in Echo (E) pod but was moved to Bravo (B) pod on August 3, 2020, for fighting. Lumpkin Aff. ¶ 7. Lumpkin further avers that Plaintiff's classification was changed to maximum security on September 4, 2020, due to multiple incidents. Lumpkin Aff. ¶ 7. Plaintiff does not dispute that he was housed in the Bravo pod. Though he refers to himself as “nondisciplinary,” he fails to present evidence to support this contention or to dispute the affidavit testimony of Lumpkin that he was originally moved to Bravo pod in August of 2020, for fighting and classified as maximum security in September of 2020 or that maximum security detainees are housed in either Bravo or Charlie pods. Further, the court notes that Plaintiff challenged this same placement into maximum security in a separate action, arguing that he was denied due process, and the court found that summary judgment was proper on Plaintiff's due process claim. See Brown v. Lumpkin, No. 4:21-0670-TMC-TER, 2022 WL 4181064, at *7-8 (D.S.C. Apr. 7, 2022), report and recommendation adopted, No. 4:21-CV-0670-TMC, 2022 WL 3224670 (D.S.C. Aug. 10, 2022). Further, that visitation was limited based on COVID, staffing shortages, and health and safety concerns-legitimate governmental interests-is not disputed in the record.
Institutional security, order, and discipline are all “essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell, 441 U.S. at 546. “Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. (citations omitted). The Bell Court cautioned that lower courts must be wary that such management decisions “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. at 547-48, 99 S.Ct. 1861 (citations omitted).
Captain Sweat's response does not explicitly acknowledge that detainees in pods other than C and B were allowed weekend visitation, but under the dictates of Rule 56, a reasonable inference arises.
“If the restriction imposed by jail officials is a disciplinary one - arising from a pretrial detainee's misconduct in custody - the detainee is entitled to notice of the alleged misconduct, a hearing, and a written explanation of the resulting decision. Williamson v. Stirling, 912 F.3d 154, 175 (4th Cir. 2018) (citing Dilworth, 841 F.3d at 252-54 (recognizing that pretrial detainees are “entitled under Bell to procedural due process in connection with any ‘punishment' imposed” by detention facility, including notice and hearing)). It is clear from the record that Plaintiff did submit a Resident Request Report to which he received a response. Whether this satisfies due process is not before the court.
Therefore, Plaintiff fails to create an issue of fact as to whether denial of visitation constitutes punishment.
To the extent Plaintiff attempts to assert a substantive due process claim, his claim fails. “[A] substantive due process claim by a pretrial detainee challenges the general conditions of confinement or the treatment of all detainees in a specific facility.” Id. (citing Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 250 (4th Cir. 2005)). It is “well settled” that “neither the Supreme Court nor the Fourth Circuit has recognized a constitutional right to prison visitation” such that it gives rise to substantive due process protections. Strebe v. Kanode, No. 7:17cv321, 2018 WL 4473117, at * 4 (W.D. Va. Sept. 18, 2018), affd, 783 Fed.Appx. 285 (4th Cir. 2019); Overton v. Bazzetta, 539 U.S. 126, 134 (2003) (upholding the suspension for two years of non-contact visits, concluding that such a suspension did not violated the First, Eighth, or Fourteenth Amendments); Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (recognizing that inmates have no “interest in unfettered visitation ... guaranteed by the Due Process Clause”); Block v. Rutherford, 468 U.S. 576, 587-88 (1984) (upholding denial of contact visits altogether for pretrial detainees). Therefore, to the extent Plaintiff raises a substantive due process claim with respect to visitation, that claim fails and summary judgment is appropriate.
For the reasons stated above, Plaintiff fails to create an issue for trial on his claims regarding visitation. Assuming for the sake of argument that he does create an issue of fact, for the reasons discussed below, Defendants are entitled to qualified immunity.
2. Equal Protection
Plaintiff also alleges that his equal protection rights were violated because detainees in his pod were not allowed visitation on holidays or weekends but all other inmates were. An equal protection claim arises when, without adequate justification, similarly-situated persons are treated differently by a governmental entity. U.S. Const. amend XIV. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause thus directs that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1982). To establish an equal protection violation, a plaintiff “must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination”; once this showing is made, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). To succeed on an equal protection claim, a plaintiff must set forth “specific, non-conclusory factual allegations that establish improper motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003). Individuals are similarly situated for Equal Protection purposes if they are “in all relevant respects alike.” Fauconier v. Clarke, 966 F.3d 265, 277 (4th Cir. 2020) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). For a plaintiff to demonstrate that he is “similarly situated,” his evidence “must show an extremely high degree of similarity between [himself] and the persons to whom [he] compare[s]” himself. Willis v. Town of Marshall, N. Carolina, 275 Fed.Appx. 227, 233 (4th Cir. 2008) (citing Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006)).
Plaintiff argues that he and other detainees in Charlie and Bravo pods were not allowed visitation on holidays or weekends even though detainees outside those two pods were. Defendants aver that the limitation on visitation to weekdays only was applicable to all detainees. However, Plaintiff presents Captain Sweat's response to his complaint about missing visitation in which Captain Sweat states “At this time Charlie and Bravo Pods will not be receiving visits on Saturdays or Sundays.” See Resident Request Report (ECF No. 78-1 p. 4). Thus, an issue of fact exists at least as to whether the rule limiting visitation to weekdays was applicable to all inmates or only to inmates in certain pods. Nevertheless, as set forth above, to establish an equal protection claim, a plaintiff must show that he was treated differently from others with whom he is similarly situated, and individuals are similarly situated if they are “in all relevant respects alike.” Fauconier, 966 F.3d at 277. Lumpkin avers that Plaintiff was originally placed in Echo (E) pod but was moved to Bravo (B) pod on August 3, 2020, for fighting. Lumpkin Aff. ¶ 7. Lumpkin further avers that Plaintiff's classification was changed to maximum security on September 4, 2020, due to multiple incidents. Lumpkin Aff. ¶ 7. Inmates classified as maximum security are either housed in Bravo (B) pod or Charlie (C) pod, which are the two closed cell pods at the SDC. Lumpkin Aff. ¶ 8. Plaintiff does not dispute that he was housed in the Bravo pod. Though he refers to himself as “nondisciplinary,” he fails to present evidence to support this contention or to dispute the affidavit testimony of Lumpkin that he was originally moved to Bravo pod in August of 2020, for fighting and classified as maximum security in September of 2020 or that maximum security detainees are housed in either Bravo or Charlie pods. Therefore, Plaintiff fails to show that he was similarly situated to the detainees who, viewing the facts in the light most favorable to Plaintiff, were allowed weekend visitation. Further, as set forth above, even if Plaintiff could show that he was treated differently from similarly situated detainees, he must still show that the unequal treatment was the result of intentional or purposeful discrimination, Veney, 293 F.3d at 731, which he fails to do. As such, his equal protection claim fails and summary judgment is appropriate.
Further, as discussed above, Plaintiff's representation is inconsistent with his previous case in which he challenged whether he received due process with respect to his classification as a maximum security inmate. See Brown v. Lumpkin, No. 4:21-0670-TMC-TER, 2022 WL 4181064, at *7-8 (D.S.C. Apr. 7, 2022), report and recommendation adopted, No. 4:21-CV-0670-TMC, 2022 WL 3224670 (D.S.C. Aug. 10, 2022).
C. Commissary Prices
Plaintiff also argues that his due process rights have been violated by being charged more than fair market value for items at the commissary. Again, it appears that Plaintiff relies on the Minimum Standards to assert a procedural due process claim. He alleges that the Minimum Standards create a protected liberty interest in receiving commissary items at fair market value.
To the extent Plaintiff intends to assert a substantive due process claim, then, such a claim fails because there is no constitutionally protected right to buy commissary products at the lowest possible price. See Lucas v. Rivera, No. 2:08-3373-HFF-RSC, 2009 WL 902355, *2 (D.S.C. 2009) (citing McCall v. Keefe Supply Co., 71 Fed.Appx. 779, 780 (10th Cir. 2003); French v. Butterworth, 614 F.2d 23, 25 (1st Cir. 1980); Pepper v. Carroll, 423 F.Supp.2d 442, 449 (D.Del. 2006) (prisoner has no constitutionally protected right to purchase commissary items as cheaply as possible); Rodriguez v. Swanson Serv. Corp., 2001 WL 506871 (D.Me. 2001) (commissary pricing does not implicate constitutional concerns); Hopkins v. Keefe Commissary Network Sales, 2007 WL 2080480 (W.D.Pa. 2007) (no right to restrain commissary from charging even exorbitant prices); Truiillo v. Young, 2003 WL 23312781 (W.D.Va. 2003) (prisoner has no protected right to purchase commissary items at low prices).
Assuming a procedural due process analysis could be applicable here, Plaintiff fails to present sufficient evidence to show that the prices he was charged at the time he was a pretrial detainee at SDC were above fair market value. Black's Law Dictionary defines “fair market value” as “[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction.” Further, the language in the Minimum Standards provides that prices shall not exceed the fair market value for comparable products “sold in the community where the facility is located.” Defendants Lumpkin and Ray aver that it was their understanding based on representations from the contractor that the commissary prices were in line with the market value of the products. Ray Aff. ¶ 20-24; Lumpkin Aff. ¶ 23-30. Though Plaintiff provides screenshots of the prices for ramen noodles and Wyler's drink mix that are lower than the prices he paid at the commissary, these are the prices for items he located on the internet. He does not present evidence of the prices for these items in the community where the SDC is located. In addition, Lumpkin and Ray aver that at the time of Plaintiff's confinement at the SDC, prices of many items fluctuated as a result of the COVID-19 pandemic due to supply chain and manufacturing issues, though they still believed their prices to be at or below fair market value. Ray Aff. ¶ 23; Lumpkin Aff. ¶ 29. Also, Plaintiff does not indicate when the date for which the prices shown in the internet screenshots were valid or show that the items he identifies are the same quantity and size as those purchased at SDC.
Plaintiff relies on the following language from the Minimum Standards:
2037 Inmate Canteen/Commissary ...
(c) Canteen/commissary prices shall be set so as not to exceed the fair market value for comparable products sold in the community where the facility is located.Minimum Standards (ECF No. 78-1 p. 6) As with the visitation policy, Plaintiff argues that use of the word “shall” in the creates an objective expectation in the “rights” established in the standard. Even if this language affirmatively creates a protected liberty interest, summary judgment is appropriate for the reasons discussed below.
Presumably, these were the prices of the items at the time he filed his Response in January of 2023, given the notation on several of the screenshots stating “delivery due by Tuesday, Jan. 10.”
He also mentions in his response that the prices he currently pays for these items at the SCDC are lower than what he paid while detained in the SDC. However, current prices would not necessarily take into consideration the price fluctuation that occurred as a result of supply chain and manufacturing issues created by COVID-19, as mentioned by Defendants. Ultimately, it is Plaintiff's burden to create an issue of fact here, and the evidence presented fails to do so. Thus, summary judgment is appropriate. Further, for the reasons discussed below, even if the Minimum Standards did create a protected liberty interest in being charged fair market value, and Plaintiff had presented sufficient evidence to create an issue of fact with respect to a procedural due process claim, Defendants are entitled to qualified immunity.
D. Qualified Immunity
Even if Plaintiff could create an issue of fact as to his claims that Defendants violated his due process rights, Defendants are entitled to qualified immunity. Qualified immunity “shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person.” Meyers v. Baltimore County, 713 F.3d 723, 731 (4th Cir. 2013). “Not all constitutional violations are violations of clearly established ... constitutional rights, so a plaintiff may prove that an official has violated his rights, but an official may still be entitled to qualified immunity.” Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 907 (4th Cir. 2016) (citing Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (internal citations and quotations omitted)). Qualified immunity turns on the “objective reasonableness of an official's conduct, as measured by reference to clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In considering an official's claim of qualified immunity, the court must determine whether “(1) the official violated a statutory or constitutional right, and (2) ... the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted).
To determine whether the right was clearly established, the court first must define the right at issue. Scinto v. Stansberry, 841 F.3d 219, 235 (4th Cir. 2016); see Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013). As the Supreme Court has explained,
A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S.----,----, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and alteration omitted). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Put simply, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
“We have repeatedly told courts ... not to define clearly established law at a high level of generality.” al-Kidd, supra, at 742, 131 S.Ct. 2074. The dispositive question is “whether the violative nature of particular conduct is clearly established.” Ibid. (emphasis added). This inquiry “ ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.' ” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).Mullenix v. Luna, 577 U.S. 7, 11-12 (2015).
“A right is clearly established only if its contours are sufficiently clear that ‘a reasonable official would understand that what he is doing violates that right.'” Carroll v. Carman, 574 U.S. 13, 16, 135 S.Ct. 348, 190 L.Ed.2d 311 (2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). An officer “cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014).
Generally, to “determine whether a right is clearly established,” courts “assess whether the law has ‘been authoritatively decided by the Supreme Court,[ ] the appropriate United States Court of Appeals, or the highest court of the state.'” Wilson v. Prince George's Cty., 893 F.3d 213, 221 (4th Cir. 2018) (citation omitted); see Doe ex rel. Johnson v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010) (stating that “ ‘ordinarily [courts] need not look beyond the decisions of the Supreme Court, [the Fourth Circuit], and the highest court of the state in which the case arose' ” as of the date of the conduct at issue), cert. denied, 562 U.S. 890, 131 S.Ct. 392, 178 L.Ed.2d 137 (2010). Here, Plaintiff fails to point to any clearly established law at the time of the offenses alleged that state law or policy-Minimum Standards or otherwise-created a protected liberty interest in visitation or fair market value commissary prices. Thus, even if Defendants had violated any of the due process rights alleged by Plaintiff, they were not clearly established at the time of the violation and, thus, Defendants are entitled to qualified immunity, and summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 73) be granted and this case be dismissed in its entirety.
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