Opinion
C. A. 4:21-3797-MGL-TER
02-17-2022
Chavis Cox, #327335, a/k/a Chavis Laranzo Cox, Plaintiff, v. Bryan Stirling, Joel Anderson, Dennis Patterson, Joseph Stines, Stacey Richardson, Esther Labrador, Terrie Wallace, Jana Hollis, Sherry Mackey, Stephanie Skewes, Brandon Byrd, Anthony Whittington, Lashawn Peeples, Willie Ocean, Clinton Parker, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
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).
Plaintiff's 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 December 6, 2021, 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. 7). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 14); however, some deficiencies remain and the action is subject to partial summary dismissal.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 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 (1994) (internal quotation and citation omitted). 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 (1999). 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 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff argues his allegations are related to the Eighth Amendment, Fourteenth Amendment(equal protection and due process), and First Amendment. (ECF No. 14 at 25). Plaintiff requests declaratory, injunctive, and monetary relief. (ECF No. 14 at 26-27). Plaintiff alleges as injuries: mental damage, emotional trauma, and vitamin D deficiency. (ECF No. 14 at 6).
Many of Plaintiff's allegations involve his dissatisfaction with his current custody/ classification level in the Substantial Security Risk Unit and the resulting conditions. (ECF No. 14 at 17-27). Public records show Plaintiff was convicted of murder in 2010 and previously attempted escape in 2018. Plaintiff alleges Anderson ordered Plaintiff to be confined to SSR. (ECF No. 14 at 17). Plaintiff alleges Defendants Hollis and Mackey recommended Plaintiff for max custody in June 2021 and afterwards the RHU multi-disciplinary committee(Defendants Anderson, Patterson, Stines, Richardson, Byrd, Labrador, and Skewes) reviewed the recommendation. (ECF No. 14 at 20). Plaintiff alleges his disciplinary charges in April 2021 were dismissed that were the basis of his classification change. Attachments indicate disciplinary charges for possession of escape tools were dismissed due to technical/procedural error and Plaintiff would remain in SSR until the “DDO deemed necessary to release you back to another institution.” (ECF No. 14-1 at 4, 8).
Per SCDC's policy, OP-22.38, SSR is described as the strictest degree of custody and control and is for inmates requiring the most intense levels of supervision and monitoring. The policy provides for a minimum 12 month assignment.
While the court recognizes that Plaintiff does not have a constitutionally recognized liberty interest in a particular security classification or prison placement, Plaintiff has alleged sufficient facts here regarding the solitary nature/conditions and possible length of his confinement to surpass summary dismissal. This same day an order is entered authorizing service of Defendants Anderson, Hollis, Mackey, Patterson, Stines, Richardson, Byrd, Labrador, and Skewes.
Meachum v. Fano, 427 U.S. 215, 225 (1976).
Plaintiff makes several allegations of violations of policy. (ECF No. 14). Allegations of violations of various standards or policies do not constitute allegations of violation of constitutional rights. Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C.1992).
Plaintiff has failed to allege facts that raise all of his claims to a constitutional magnitude. Not every inconvenience encountered rises to the level of “punishment” from a constitutional standpoint. Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). An inmate may set out a conditions of confinement claim by alleging that he was deprived of a basic human need which was objectively sufficiently serious and that subjectively, prison officials acted with a sufficiently culpable state of mind to expose him to those conditions. Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.1993). Only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Plaintiff alleges in connection with his custody level that he is restricted from canteen, 15 minute phone periods, and general writing materials(addressed below under denial of access to court). (ECF No. 14 at 21). Plaintiff alleges in connection with his custody level that he must be strip searched anytime he leaves his cell. (ECF No. 14 at 22). Plaintiff alleges his classification deprives him of social contact, stimuli, sleep, sunlight, and health. Plaintiff does not connect an individual defendant to these allegations. (ECF No. 14 at 18). As to Plaintiff's allegations of freezing temperatures and lack of windows, Plaintiff alleges he complained to Defendants Wallace and Hollis but it is not clear they personally caused such condition. Defendant Hollis is alleged to have stated she had no authority over windows and that there were mobile heaters on each wing. (ECF No. 14 at 17). Such allegations do not rise to a claim of a constitutional magnitude. Plaintiff has failed to plead facts to establish that these above alleged conditions rose to the level of an Eighth Amendment violation and a constitutional injury caused by the conditions. See Hinojos v. Byars, No. CA 2:13-1900-JFA-WWD, 2014 WL 3687400, at *6 (D.S.C. July 23, 2014). “Speculations of possible future injury do not meet the required standard.” Green v. DeWitt, No.6:10-429-RMG, 2010 WL 5390015, at *3 (D.S.C. Nov. 1, 2010), report and recommendation adopted, 2010 WL 5387567 (D.S.C. Dec. 22, 2010).
“There is simply no freestanding constitutional right to canteen privileges at all.” Bennett v. Cannon, No. 2:05-2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006).
Phone privileges are not a protected liberty interest. See U.S. v. Alkire, No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr.10, 1996) (no constitutional right to the use of a telephone in prison); Chestnut v. Green, No. 3:10-1559-TLW, 2011 WL 2119306, at *4 (D.S.C. Apr. 5, 2011), report and recommendation adopted, 2011 WL 2133534 (D.S.C. May 27, 2011).
Strip searches do not violate a prisoner's Fourth Amendment right to privacy if the search is reasonable. Bell v. Wolfish, 441 U.S. 520 (1979).
Plaintiff alleges generally that there is mold in the floor and mold in the food. (ECF No. 14 at 22). Plaintiff alleges he is not given cleaning supplies daily and does not receive a heart healthy diet. Plaintiff alleges his environment is anti-therapeutic. (ECF No. 14 at 22). Plaintiff has already been informed that a person must have performed personal action connected to Plaintiff's allegations and caused injury to Plaintiff. Plaintiff has not alleged personal action of an individual as to these claims. Plaintiff has already been informed of this deficiency. 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.” BellAtl. 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.
As to Plaintiff's claim regarding exercise, he alleges he is provided exercise opportunities but must be strip searched to leave his high level security cell. (ECF No. 14-1 at 17). Plaintiff has failed to allege a claim of a constitutional magnitude as to this issue and has not connected a individual to his allegations.
Strip searches do not violate a prisoner's Fourth Amendment right to privacy if the search is reasonable. Bell v. Wolfish, 441 U.S. 520 (1979).
To the extent Plaintiff alleges Defendants Stirling was aware of the condition of the unit, awareness is not an allegation of causation or of personal involvement. (ECF No. 14 at 18). Plaintiff refers to a Settlement Agreement and a report of the Implementation Panel; the lawsuit is a state court action, No. 2005-CP-40-2925, and the state court stated in 2014 “in executing the remedial plan to be submitted by SCDC, the court will retain jurisdiction but also intends to appoint a monitor who will report periodically to the court.” There are filings in the state court case as of 2021.
To the extent Plaintiff seeks enforcement of a state court order where that court retained jurisdiction over implementation of its order, the state court would be the proper forum to address such a claim.
Plaintiff alleges Defendant Hollis took several People magazines from him. (ECF No. 14 at 19). In a case where a prisoner in SMU was denied all publications, this court found:
Courts have routinely upheld similar prison regulations. For example, in Beard, the Supreme Court upheld a policy that banned all access to newspapers, magazines, and
photos. 548 U.S. at 533. Further, judges in this District who have examined the constitutionality of the SCDC ban on SMU prisoners' possession of newspapers have repeatedly concluded that this restriction does not violate prisoners' constitutional rights. See, e.g., Owens v. S.C. Dep't of Corrs., No. 09-278, 2009 WL 4807005, at * 8-9 (D.S.C. Dec. 8, 2009) (stating the defendants should be granted summary judgment on the plaintiff's First Amendment claim because in prior cases, the SCDC policy had been held to be rationally related to legitimate and neutral governmental objectives); Peoples v. Burtt, No. 07-2702, 2008 WL 2315865, at *6 (D.S.C. May 30, 2008) (holding SCDC Policy No. OP-22.12 was rationally related to legitimate and neutral governmental objectives); Koon v. Ozmint, No. 06-2000, 2007 WL 1486067, at *4 (D.S.C. May 18, 2007) (same); Corey v. Reich, No. 02-2801, 2004 W L 3090234, at *8 (D.S.C.Mar.9, 2004) (holding the plaintiff's claims as to restrictions on his ability to receive magazines, books, or other materials was without merit); see also Bryan v. S.C. Dep't of Corr ., No. 07-21, 2009 WL 512158, at *5 (D.S.C.Feb.27, 2009) (stating the plaintiff's claim that a denial of books and legal materials violated his constitutional rights failed because the plaintiff failed to allege a specific injury resulting from the denial).Collins v. Padula, No. 2:12-cv-3112-DCN-BHH, 2014 WL 1319103, at *15 (D.S.C. Feb. 11, 2014), report and recommendation adopted in part, 2014 WL 1318978 (D.S.C. Mar. 31, 2014), aff'd, 582 Fed.Appx. 258 (4th Cir. 2014); see also Goss v. Stirling, No. 0:18-cv-326-BHH-PJG, 2019 WL 10948725, at *7 (D.S.C. Dec. 17, 2019), report and recommendation adopted, 2020 WL 4932276 (D.S.C. Aug. 21, 2020), aff'd, 859 Fed.Appx. 681 (4th Cir. 2021)(collecting cases). Plaintiff has failed to state a claim upon which relief can be granted.
Plaintiff alleges Defendant Hollis told Plaintiff he could not participate in an education course. (ECF No. 14 at 19). “Inmates also possess no constitutionally protected interest in participating in specific rehabilitation or education programs.” Garcon v. Cruz, No. 6:14-cv-4332-RM, 2015 WL 4557146, at *4 (D.S.C. July 28, 2015)(collecting cases). Plaintiff fails to state a claim upon which relief can be granted.
Plaintiff alleges Defendants Hollis and Parker denied Plaintiff a pencil in October 2021. (ECF No. 14 at 22). Plaintiff does not allege any specific injury arising from this and it is clear Plaintiff has been able to file his 55 page hand written Amended Complaint with the court. Plaintiff alleges he has no access to the kiosk or tablet. Plaintiff attaches multiple levels of paper grievances. To the extent by this allegation Plaintiff is attempting to allege a denial of access to courts claim, in Lewis v. Casey, 518 U.S. 343, 349 (1996), the Supreme Court held that a prisoner must show some actual injury resulting from a denial of access in order to allege a constitutional violation. This requirement can be satisfied by demonstrating that a non-frivolous legal claim was frustrated or impeded by some actual deprivation of access. Id. at 352-53. A claim for failure to provide access to courts must be pleaded with specificity. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Plaintiff has alleged no specific injury as to these allegations. (ECF No. 14 at 22).
To the extent Plaintiff is suing in regard to the grievance process, there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
Plaintiff alleges he has had no group therapy sessions and Defendant Hollis is responsible for preparing the space for these events. (ECF No. 14 at 23). This allegation does not rise to a claim of constitutional magnitude.
Plaintiff alleges Stirling was negligent in failing to have an annual inspection by the fire marshal. (ECF No. 14 at 24). Negligence is not actionable under § 1983 and this allegation involves no specific injury to Plaintiff resulting from a specific defendant's specific conduct and an affirmative link between Plaintiff's injury and that conduct. Rizzo v. Good, 423 U.S. 362, 371-72 (1976).
As to Plaintiff's allegations that his equal protection rights were violated, Plaintiff must demonstrate that he was treated differently from similarly situated inmates and the discrimination was intentional or purposeful. Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003). Plaintiff's allegations connect his treatment to his classification and the affidavits attached from other prisoners in the same unit do not support his allegations that Plaintiff is treated differently. Plaintiff's comparisons to general population are not a comparison to similarly situated inmates. “Plaintiff's complaint that he was treated differently than inmates confined in other Sections, does not establish that he was treated differently than similarly situated inmates.” Field v. W. Virginia, No. 2:20-00147, 2020 WL 8085176, at *10 (S.D. W.Va. Dec. 16, 2020), report and recommendation adopted, 2021 WL 77464 (S.D. W.Va. Jan. 8, 2021)(finding Plaintiff failed to state an equal protection claim); see also Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 136 (1977) (“There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence.”). Plaintiff's allegations do not give rise to an equal protection claim.
To the extent Plaintiff is attempting to allege supervisory liability by some defendants' positions, such defendants are subject to summary dismissal because no facts are alleged as to personal involvement and supervisory liability. 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;
(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); Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984).
Based on the allegations presented by Plaintiff, Plaintiff has failed to state a claim upon which relief could be granted as to all Defendants. Plaintiff failed to cure all of the deficiencies in the Complaint and was already given notice and opportunity to file an Amended Complaint and availed himself of the opportunity. Thus, Plaintiff's action is subject to partial summary dismissal.
Plaintiff has failed to state a claim upon which relief could be granted as to Defendants Stirling, Whittington, Peeples, Ocean, Wallace, and Parker. Additionally, Plaintiff has failed to state a claim upon which relief could be granted as to claims regarding equal protection, magazines/First Amendment, pencil/denial of access to court, supervisor liability, and conditions claims not pleaded with a causal connection to a specific person as discussed above.
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case. Specifically, it is recommended that Defendants Stirling, Whittington, Peeples, Ocean, Wallace, and Parker be summarily dismissed with prejudice and without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Hollis, Anderson, Mackey, Patterson, Stines, Richardson, Byrd, Labrador, and Skewes.
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 of Defendants Stirling, Whittington, Peeples, Ocean, Wallace, and Parker in this case be with prejudice, as Plaintiff has had an opportunity to amend, filed an Amended Complaint, and has failed to cure deficiencies as to those Defendants.
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).