Opinion
Civil Action 4:22-cv-2043-HMH-TER 4:22-cv-2042-HMH-TER
07-17-2023
ANTHONY-SHANE MARTIN, Plaintiff, v. CORRECT CARE RECOVERY SOLUTIONS, ERIN GAFFNEY, BRIAN DAVIS, JARED ANDERSON, DOCTOR DUBIE, and GINA BRISSON, Defendants. ANTHONY-SHANE MARTIN, Plaintiff, v. WELLPATH/CORRECT CARE, ERIN GAFFNEY, LISA YOUNG, RAY WALKER, LENOKA GAVIN, HODIYAH LEWIS, and DR. CARDON, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff is proceeding pro se and is part of the South Carolina Sexually Violent Predator Treatment Program (SVPTP). He is currently in the custody of the South Carolina Department of Mental Health (SCDMH) pursuant to the South Carolina Sexually Violent Predator Act, SC Cod Ann. § 44-48-10 et al. In these consolidated actions, he asserts various violations of his constitutional rights. Plaintiff claims Defendants have violated his First, Eighth, and Fourteenth Amendment rights by confiscating certain articles and newsletters from him, allegedly placing him on wing restriction due to these materials, and imposing restrictive living conditions on him generally as an SVPTP resident by not allowing access to the internet, not allowing “X-rated” and “R” rated movies, not allowing electronic devices such as laptops, requiring pre-approval of calls to 1-800 phone numbers, and taking away television sets from residents when their C.A.R.E. level falls below a certain threshold.
Presently before the court is Defendants' Motion for Summary Judgment (ECF No. 40).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. 44) 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.
Unless otherwise noted, the ECF numbers referenced herein are for the 22-4023 case, which is the lead case for these consolidated actions.
II. FACTS
Plaintiff is part of the South Carolina Sexually Violent Predator Treatment Program (SVPTP), and is currently in the custody of the South Carolina Department of Mental Health (SCDMH) pursuant to the South Carolina Sexually Violent Predator Act, SC Cod Ann. § 44-48-10 et al. Pursuant to the Act, the SCDMH and the South Carolina Department of Corrections (SCDC), have entered into an inter-agency agreement whereby the S.C. SVTP residents are housed in a secure treatment facility located on the campus of the Broad River Correctional Institution (BRCI). See In re Treatment and Care of Luckabaugh, 351 S.C. 122, 136, 568 S.E.2d 338, 345 (2002). The SCDMH contracts with Correct Care Recovery Solutions (CCRS), which is now known as Wellpath, to provide licensed medical and mental healthcare to participants in the SVPTP.
Plaintiff's Amended Complaint in case number 4:22-cv-02042-HMH-TER alleges First Amendment violations due to the confiscation of Plaintiff's distribution of a newsletter and of several articles promoting normalization of pedophilia that he possessed, that he was distributing, which Defendants contend was in violation of facility rules. See “2042 Am. Complaint” (ECF No. 29). Further, Plaintiff's 2042 Am. Complaint alleges Plaintiff was placed on wing restriction following these violations but prior to his receiving written notices of the violations, which he claims violated his Eighth and Fourteenth Amendment rights. See id. Plaintiff's Amended Complaint in case number 4:22-cv-02043-HMH-TER alleges violations of his First, Eighth, and Fourteenth Amendment rights in that SVPTP residents are not allowed internet access, are restricted as to their calls to 1-800 telephone numbers, are not allowed to have certain personal electronic devices such as laptops, and are not allowed to watch X-rated and R-rated movies. See “2043 Am. Complaint” (ECF No. 1-1).
A. Plaintiff's Newsletter
The evidence in the record reveals that Plaintiff's newsletter was confiscated because it was being distributed to other residents without prior approval in violation of facility rules-that Plaintiff was aware of these rules is apparent in that he submitted a request to distribute his newsletter and “took it upon [himself] to write [the newsletter] and give it to other [residents]” while an approval decision was still pending. See Behavior Management Hearing Disposition regarding Newsletter (ECF No. 40-3). Plaintiff alleges that he was placed on “wing restriction” as punishment prior to receiving written notice of his violation. However, Plaintiff's placement on a secured management status was investigatory and cautionary rather than disciplinary, and that placement resulted not from the newsletter, a minor violation, but rather from Plaintiff's possession of a pornographic photograph, a major violation at the SVPTP. See Incident Report Regarding November 5, 2021, Pornography Violation (ECF No. 40-4); Behavior Management Hearing Disposition Regarding Pornography Violation (ECF No. 40-5).
With respect to Plaintiff's newsletter and the concurrent possession of a pornographic photograph, Ron Lawrenz, the facility administrator for Wellpath, avers:
18. The S.C. SVPTP Resident Handbook, to which all residents have access, states at Page 43 that “for each class of contraband listed below, possession of said item(s) will result in a rule violation of the same class.” (Wellpath 000044). “Contraband: Is defined as any article or thing that is not authorized. . . or is in the possession of a person who is not the authorized owner.” Id. “Contraband items include, but are not limited to, the following: . . . Pornographic/sexually explicit materials.... Personal property of another resident.... Any item that could be at threat to the staff, residents, or the facility as deemed by Security.” Id.
19. The S.C. SVPTP Resident Handbook provides classification of rule violations at Page 42, explaining that a resident may be charged with a “G-5” minor rule violation for “Possession of anything not authorized,” and with a “G-13” minor rule violation for “Violation of facility rules.”
....
21. Having reviewed the above-referenced documents, I have determined that the behavior management procedure outline above at ¶17 was followed in response to Plaintiff's unauthorized publication of a newsletter within the facility.
a. The Behavioral Rule in question is (G-13) Violation of facility rules.
b. The SVPTP has a policy in place prohibiting residents' possession of contraband, which the Resident Handbook defines as “any article or thing that is not authorized.... [c]ontraband items may include, but are not limited to, the following.... [a]ny item that could be a threat to the staff, residents, or the facility as deemed by Security.”
(Wellpath 000044).
c. On May 14, 2021, Mr. Martin submitted a Resident Communication Form enclosing a copy of “the first edition” of a newsletter he intended to circulate within the SVPTP, seeking staff approval. He was provided a response on May 28, 2021, notifying him that his submission was “Under consideration/review.”
d. On November 5, 2021, Mr. Martin was found to be in possession of “Volume one Issue Three” of his newsletter, which had already been found on multiple housing units. No approval had been granted for the newsletter, and it was confiscated as contraband.
e. Also on November 5, 2021, Mr. Martin was found to be in possession of a photograph of a woman's vagina, which he admitted to having hidden under his locker. Residents are not allowed to possess pornographic materials, and the photo was confiscated as contraband.
f. Mr. Martin was charged with G-13 Violation of facility rules with regard to the newsletter, which was categorized as a minor violation. Mr. Martin was also placed on secure management status on the secure management unit due to his simultaneous C-11 Possession of adult pornography charge, which was categorized as a major violation. This placement was not disciplinary but rather investigatory, pending his BMC hearing on the C-11 and G-13 charges. Residents may be placed on secure management status when charged with a facility violation in order to remove them from the general population, to search their room, belongings, and person for contraband, and to hold them temporarily in a more secure setting.
g. Appropriate incident reports were created and provided to the administration with regard to these violations.
h. The administration provided a Notice of Violation and Behavior Management form to Mr. Martin, notifying him of the specifics of the G-13 charge; Mr. Martin signed the form on November 9, 2021.
i. The Notice of Violation's affirmative notation for “wing restriction” reflects Mr. Martin's placement on secure management status for the reasons explained above at ¶21(f).
j. On November 11, 2021, the Behavior Management Hearing for the G-13 (newsletter) violation occurred. The BMC consisted of Leonka
Garvin, Lisa Young, and Dorothy Zimmerman, and Mr. Martin was present.
i. Based on the staff report, Mr. Martin was found to have committed a minor violation with regard to the newsletter and was issued a verbal warning. He was permitted to remain at his then-current CARE level of 5. The report demonstrates he was not placed on wing restriction as punishment.
k. On the same day, the Behavior Management Hearing for the C-11(pornographic photograph) violation occurred.
i. Based on the staff report and Mr. Martin's confession, Mr. Martin was found to have committed a major violation with regard to his possession of the pornographic photograph and was reduced from CARE level 5 to a CARE level of 4. The report demonstrates he was not placed on wing restriction as punishment.
l. Mr. Martin was not placed on wing restriction as punishment for either offense.Lawrenz Aff. ¶¶ 9, 18-19, 21 (ECF No. 40-1).
Doctor Michelle Dube, a licensed psychologist who serves as the Clinical Director for Wellpath, explains the importance of the facility's rules generally prohibiting unapproved sharing of materials among residents:
18. Residents are not allowed to share or exchange any personal property or items of any kind. Because the resident population is both intelligent and manipulative, they can create an economic system of exchange within the facility and use it to manipulate the behaviors and actions of other members who are working to obtain items or owe “favors” to other members. For some residents, these very behaviors were used to “groom” their victims.Dube Aff. ¶18 (ECF No. 40-2); see also Incident Report Regarding Newsletter (ECF No. 40-6).
Plaintiff also complains that the lack of approval for distribution of his newsletter violates his constitutional rights. Lawrenz explains the reason for the denial of approval:
10. Plaintiff, through his Complaint, seeks to publish, print, or otherwise distribute
and disseminate his newsletter that promotes messages counter to the goals of the SVPTP and endangers the safety of the staff and medical personnel employed at the facility. The newsletter condemned the SVPTP itself, as well as the staff members working in the facility.
....
13. Allowing the publication and distribution of Plaintiff's newsletter runs counter to these goals. The newsletter promotes messages counter to the treatment provided. Indeed, the newsletter seeks to normalize many of the conditions the program is designed to treat and rehabilitate its residents. The newsletter further undermines the therapeutic goals of the program by claiming that the SVPTP does not “work,” that it has a secret goal of punishing residents, that it requires clinicians to violate their ethical principals by punishing rather than treating residents, and that it is based on erroneous understandings of mental abnormalities.
14. The SVPTP has the explicit goal of rehabilitating individuals and attempts to reintegrate its residents into society by removing the urges and thinking patterns that have led the residents to engage in unfit behavior in the past. In my professional judgment, allowing the distribution of a newsletter that runs counter to these goals, and allowing the possession of articles that undermine the rehabilitative mission would be counter to the Plaintiff's treatment targets. The program cannot rehabilitate if its residents are actively fighting against the rehabilitation.
15. Allowing the publication and distribution of the Plaintiff's newsletter would also pose a security threat within the facility. The newsletter presents security concerns by publishing inflammatory content that seeks to undermine the legitimacy and efficacy of the program, suggests that SVPTP staff possess an ulterior motive to “harm” residents, argues that the residents should not be committed at the facility, and characterizes such commitment as “a fate worse than death.” At times the newsletter took more concrete steps toward fomenting potentially violent resistance among residents in the SVPTP, stating, for example:
From the perspective of indefinite pseudo incarceration claimed to be for preventative detention, or is it really punishment for a crime of the past or a possible crime of the future? A little lesson from history, may inspire you. The Declarations did not spring from the heads of visionaries. It was first proceeded (sic) by a period of worsening relations with Great Britain and ultimately during the last year and a quarter before[]hand by military skirmishes and even actual battle with British troops at Breeds Hill (Bunker Hill).... [W]hatever form of government becomes destructive of the rights it is the right of the people to alter or abolish that government. Something to thank (sic) about on this and other days here in the program. Have you given up
your rights? What have you done to ensure that your rights are being up[]held?
....
ALSO DO YOUR PART as a show of solidarity and support for the end of sex offender civil commitments everywhere. We ask that everyone wear black on Monday. This is also in remembrance of all that have died in civil commitments everywhere.
Such inflammatory calls to potentially violent action and to organized resistance pose serious security risks within the facility.
Lawrenz Aff. ¶¶10, 13-15. Dr. Dube also avers that the newsletter posed a risk to undermining the therapeutic goals of the program:
12. Wellpath provides residents of the S.C. SVPTP with treatment and care as authorized by South Carolina statute. It is not a detention center; instead, the program's singular goal and focus is to reduce each resident's risk of future sexual violence through rehabilitation. To reach this goal Wellpath has been given the authority in the S.C. SVPTP to take reasonable steps to ensure these goals are met.
....
16. Allowing the publication and distribution of Plaintiff's newsletter runs counter to these goals and contributes to his Dynamic Risk Factors. The newsletter promotes messages that reinforce negative beliefs about the system and treatment in general. The content is highly likely to promote feelings of hopelessness, hostility, and suspiciousness of the motives of the staff itself. It reinforces certain Dynamic Risk Factors like grievance-thinking and hostility within the program among the residents. These risk factors, once they take hold in the residents, run counter to the therapeutic goals of the program. Residents must take ownership of their own recovery, and if they regress due to feelings of ambivalence towards the program, there is very little the SVPTP can do to reengage the residents.
....
20. The SVPTP has the explicit goal of rehabilitating individuals by addressing the thoughts, feelings, behaviors, and dynamic-risk factors that contributed to their sexually abusive behaviors. In my professional judgment, allowing the distribution of a newsletter that runs counter to these goals, and allowing the possession of articles that undermine the rehabilitative mission would be counter to the Plaintiff's treatment targets. While we have approved a resident-run newsletter for the SVPTP, the residents who are involved in the newsletter have decided they do not want to use the newsletter as a means to express grievances about the program or laws. They specifically added a “disclaimer” to each of their publications to notify the resident
population that they do not wish to use the newsletter as a “legal platform” or to discuss “controversial issues.” Instead, their goal is to offer inspiring and motivating content to the resident population, as well as updates on current events, scores of sporting events, resident artwork, and some humorous content. This decision was made by the residents (independently) during their newsletter meetings. Additionally, the residents are screening resident submissions (as part of the newsletter committee) to determine the content they wish to include or exclude, not the staff. Ultimately, the final product must be submitted to me for review and approval before it is published and distributed to the population, but the content development is entirely in the hands of the newsletter committee. At present, I have approved every submission. I have not had to reject any content to date.
21. As part of the therapeutic goals of the SVPTP, it is of the utmost importance that the residents take ownership of their own rehabilitation. When a resident actively opposes the principles of the treatment and therapeutic milieu, they not only undermine their own recovery, but when those feelings are actively broadcast to their fellow residents, they also risk the recovery of the other residents with whom he interacts.Dube Aff. ¶¶ 12, 16, 20-21.
B. Plaintiff's Articles on Pedophilia
Plaintiff also complains that his rights were violated with three articles related to pedophilia-entitled “Normalizing Pedophilia,” “Researchers taking a different view of pedophilia,” and “Of kinks, crimes, and kind”-were confiscated. 2042 Am. Compl. p. 3. Dr. Dube avers that the articles were initially confiscated because Plaintiff had provided them to other residents in violation of facility rules, as discussed above, he also had not received prior approval to possess the articles. Dube Aff. ¶ 11. Lawrenz avers that the articles were properly confiscated:
22. Having reviewed the above-referenced documents, I have determined that the behavior management procedure outline above at ¶17 was followed in response to Plaintiff's provision of unauthorized articles related to normalization of pedophilia to a fellow resident within the facility.
a. The Behavioral Rules in question are (G-5) Possession of anything unauthorized and (G-13) Violation of facility rules.
b. The SVPTP has a policy in place prohibiting residents' possession of contraband, which the Resident Handbook defines as “any article or thing that is not authorized. . . or is in the possession of a person who is not the authorized owner.” (Wellpath 000044). “Contraband items include, but are not limited to, the following: . . . . Pornographic/sexually explicit materials.... Personal property of another resident.... Any item that could be at threat to the staff, residents, or the facility as deemed by Security.” Id.
c. On February 2, 2022, a resident was found with three articles in his possession which he had received from Mr. Martin. Two of the articles had the name of a third resident on them, and the third promoted the “normalization” of pedophilia. The articles were all three confiscated as being property of other residents and/or violating the treatment objectives of the SVPTP.
d. Mr. Martin was charged with G-5 Possession of anything unauthorized and G-13 Violation of facility rules, which were characterized as minor violations.
e. An appropriate report was filled out and provided to the administration.
f. The administration provided Notice of Violation and Behavior Management forms to Mr. Martin, notifying him of the specifics of the charges; Mr. Martin signed these forms on February 8, 2022. These forms contain an affirmative notation of “wing restriction,” which would normally reflect that Mr. Martin had been placed on secure management status on the secure management unit. Such placement would not have been disciplinary but rather investigatory, pending his BMC hearing on the G-5 and G-13 charges. Residents may be placed on secure management status when charged with a facility violation in order to remove them from the general population, to search their room, belongings, and person for contraband, and to hold them temporarily in a more secure setting. In this instance, however, the notation of “wing restriction” was a clerical error, as Mr. Martin retained his then current housing status and permissions, as is demonstrated by facility records reflecting his visits to the law library and his participation in group therapy sessions during this time-privileges generally unavailable to residents on wing restriction.
g. On February 10, 2022, the Behavior Management Hearing
occurred. The BMC consisted of Hadiya Lewis, Roy Walker, and another staff member, and Mr. Martin was present.
h. Based on resident admission and staff reports, Mr. Martin was found to have committed a minor violation and was issued a verbal warning. He was permitted to remain at his then-current CARE level of 4.Lawrenz Aff. ¶ 22. Although the reasons that the articles were confiscated were because Plaintiff distributed them to other residents and failed to receive approval to possess them, Dr. Dube averred that the articles themselves also posed therapeutic concerns for Plaintiff and the other residents. Dube Aff. ¶¶ 13-15, 17-19, 23-24.
C. Other Restrictive Conditions
Plaintiff also complains of other restrictive conditions at the SVPTP in that residents are not allowed internet access, are restricted as to their calls to 1-800 numbers, are not allowed to have certain personal electronic devices such as laptops, are not allowed to watch X-rated and R-rated movies, and are not allowed to have personal televisions when their CARE rating drops below a certain level. 2043 Am. Complaint (ECF No. 1-1). Dr. Dupe provides the following reasons for these restrictions:
24. As part of its treatment framework, the S.C. SVPTP imposes numerous restrictions on the residents to prevent resident engagement in sexually deviant behavior. For example, residents are not allowed to access the internet, to use personal DVD players, to call un-approved “1-800” phone numbers, or to possess photographs of children who are not their own children. These restrictions are important aspects of the treatment of the residents, who lack the ability to successfully manage sexually deviant urges.
a. As to restriction of internet access, in addition to the obvious risks of accessing pornographic materials, resident treatment would also be undermined if residents were able to access other materials which, while not pornographic, could reinforce sexually deviant behavior. SVP residents are not allowed to possess photographs, for example,
of other residents, of children, etc. Access to such materials would enable fantasy behaviors that would run counter treatment. Residents could also use the internet to contact past or potential victims, which in addition to posing a threat of harm to those victims would undermine resident treatment. The SVP resident population is an intelligent one for which internet access would enable endless possibilities for counter-therapeutic activity.
b. As to the restriction of rated “R” movies, similar considerations apply. Residents of the SVP are not allowed access to sexually explicit content or to violent content, which for many residents has a sexual dimension. Such content would contribute to residents' dynamic risk factors and undermine SVP efforts at rehabilitation.
c. As to the restriction of calls to unapproved “1-800” numbers, residents must obtain SVP staff approval of 1-800 numbers they wish to call. This restriction prevents residents from engaging in counter-therapeutic behavior such as calling phone sex services or contacting past or potential victims.
25. The SVP uses a system of C.A.R.E. levels as part of the treatment program, which provides progressive privileges (such as possession of personal television sets) in accordance with demonstrated responsible conduct by residents. When a resident commits a behavioral violation, certain privileges may be temporarily revoked. Such revocation of privileges is conducted through an extensive behavioral management committee procedure and serves as an integral part of the therapeutic structure of the SVP treatment program.
Dube Aff. ¶¶ 24-25.
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
As an initial matter, in their motion, Defendants characterize Plaintiff's claims as being brought pursuant to 42 U.S.C. § 1983. Plaintiff asserts in response that he did not bring his claims under § 1983. He cites to the coversheets for both actions when they were originally filed in state court, wherein he marked as the nature of the actions “Administrative Law/relief Permanent Injunction” and “Judgment/Settlement Magistrate Judgment.” However, a review of Plaintiff's claims reveals that the appropriate procedural mechanism is § 1983 because Plaintiff complains of constitutional violations by state actors. 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). Plaintiff clearly alleges that Defendants deprived his First, Eighth, and Fourteenth Amendment rights.
Further, it is undisputed that the individual Defendants named in this action were acting under color of state law. As stated above, the SVPTP is a program run by the SCDMH, and Wellpath contracts with the SCDMH to provide care for the residents of the program. The SCDMH is a state agency, see Hunt v. South Carolina, No. CV 8:18-2241-TMC-JDA, 2018 WL 7150756, at *3 (D.S.C. Sept. 18, 2018), and employees of a private entity that contracts with the state to provide medical services act “under color of state law” for § 1983 purposes. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1998). Therefore, Plaintiff's claims are governed by § 1983.
However, Defendant Wellpath/Correct Care is not a “person” amenable to suit under § 1983. A medical provider “whose medical staff provides health care services to businesses, institutions, an individuals is not a ‘person' subject to suit under 42 U.S.C. § 1983.” Vinson v. Cannon, C. A. No. 2:10-3214-HFF-BHH, 2011 WL 1624962, at *6 (D.S.C. Mar. 28, 2011), Report and Recommendation adopted by 2011 WL 1627953 (D.S.C. Apr. 28, 2011). Further, to the extent Plaintiff is suing Wellpath/Correct Care because it employed the individually named Defendants, such a claim still fails because the doctrines of vicarious liability and respondeat superior are not applicable in § 1983 actions. See Moultrie v. S. Health Partners, No CIV.A. 4:14-337-RMG, 2014 WL 5824759, at *4 (D.S.C. Nov. 10, 2014); see also Monell v. Department of Social Services, 436 U.S. 658, 649 (1988); Vinnedge v. Gibbs, 550 F.2d 926, 928-29 (4th Cir. 1977). Therefore, summary judgment is appropriate as to Plaintiff's claims against Wellpath/Correct Care.
B. Confiscation of Newsletter and Articles
Plaintiff alleges that his First Amendment rights were violated by confiscation of his newsletter and his articles on pedophilia. As an initial matter, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). In Youngberg, the Supreme Court considered the substantive due process rights of involuntarily committed mentally retarded persons and held that they have a right to “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these conditions.” Id. at 324. This standard has been extended to those committed because they have been found to be sexually violent. Allison v. Snyder, 332 F.3d 1076, 1081 (7th Cir.2003). Thus, while Plaintiff may not be subjected to conditions that amount to punishment, Bell v. Wolfish, 441 U.S. 520, 536 (1979), he nonetheless may be subjected to conditions within the bounds of professional discretion that place restrictions on his personal freedoms. Youngberg, 457 U.S. at 321-22. “[T]he proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints” is struck by having “courts make certain that professional judgment in fact was exercised.” Id. To that end, “[i]t is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Id. (internal quotation marks omitted); cf Kansas v. Hendricks, 521 U.S. 346, 368 n.4, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (“States enjoy wide latitude in developing treatment regimens.”). Ultimately, “due process requires that the conditions and duration of confinement ... bear some reasonable relation to the purpose for which persons are committed.” Allison, 332 F.3d at 1079 (quoting Seling v. Young, 531 U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001)) (rejecting a constitutional challenge to implementation of Illinois law which authorizes civil confinement of persons charged with sex offenses)). “When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley. 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
The Turner court has set forth four factors to assist with the reasonableness determination:
(1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right that remain open to prison inmates; (3) the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and (4) whether
there's an absence of ready alternatives to the regulation, which is evidence of [its] reasonableness.Matherly v. Andrews, 859 F.3d 264, 281 (4th Cir. 2017), cert. denied, 138 S.Ct. 399, 199 L.Ed.2d 294 (2017) (citing Turner, 482 U.S. at 89-90) (internal quotations omitted). The Fourth Circuit has noted that application of these factors to civil detainees requires a slight adjustment only to the extent that “civil detainee” is used in place of “inmate” Id. at 282. Otherwise, the application is the same. Id. (applying the Turner factors to a sexually violent detainee's First Amendment claim).
With respect to the first factor, Defendants have shown a valid, rational connection between the restriction on sharing newsletters and articles and the legitimate governmental interest in maintaining safety within the facility and providing comprehensive treatment to sexually violent predators. As Dr. Dube's affidavit testimony explains, the SVPTP's rules prohibiting the unapproved sharing of materials between residents were established in furtherance of the objective of preventing manipulative behaviors which are characteristic of the mental abnormalities for which residents of the SVPTP are being treated. Dube Aff. ¶ 18. In addition, Plaintiff's newsletter posed a security risk within the SVPTP in that it actively called for organized protests of the SVPTP and encouraged residents to resist the SVPTP. Lawrenz Aff. ¶ 15. Further, the newsletter was counter-therapeutic in that it “promote[d] messages that reinforce negative beliefs about the system and treatment in general.... [and was] likely to promote feelings of hopelessness, hostility, and suspiciousness of the motives of the staff itself.” Dube Aff. ¶ 16. Likewise, the articles on pedophilia posed therapeutic problems by “promot[ing] the use of offense supportive attitudes to normalize and/or minimize the very actions that resulted in his civil commitment under the SVP Act.” Dube Aff. ¶15.
The second Turner factor considers whether there are alternative means of exercising the imposed upon right. The residents in the SVPTP are not prevented from exercising all First Amendment rights. Further, the SVPTP does have an approved, resident-published newsletter, which allows for an alternative means of expression within the program. Dube Aff. ¶ 20.
Under the third Turner factor, courts consider the impact accommodation of the right would have on guards and other civil detainees. Accommodation of the right would involve allowing residents to distribute unapproved writings and share personal belongings. As evidenced by Plaintiff's newsletter and the pedophilia articles, such writings could include communications calling for resistance to the program and ideals undermining the treatment goals of the program. Further, allowing residents to share or exchange personal belongings would allow for a method of bargaining and control amongst residents that would also undermine the program's treatment goals.
Finally, under the fourth Turner factor, an absence of ready alternatives to the restriction reveals that the restriction is reasonable. Courts have granted facility managers of sexually violent predator treatment programs great discretion when it comes to the management of the facility and program. See Youngberg v. Romeo, 457 U.S. 307, 322 (1982). “[T]he Constitution only requires that the courts make certain that professional judgment in fact was exercised.” Id. at 321 (citing Romero v. Youngberg, 644 F.2d 147, 178 (3rd Cir. 1980)). Based upon the affidavits of Lawrenz and Dube, the policies and procedures at issue are reasonably related to the legitimate governmental goals of maintaining safety and security at the facility and maintaining the effectiveness of the treatment rendered at the facility. Accordingly, summary judgment is proper on Plaintiff's First Amendment claim.
C. Wing Restriction
Plaintiff also alleges that Defendants violated his procedural due process rights by placing him on wing restriction prior to any notice of the charges against him. As stated above, the appropriate standard for analyzing due process rights of civilly committed detainees can be found in Youngberg: Government officials are permitted to determine the conditions of an involuntarily committed individual's confinement, within the bounds of professional discretion. 457 U.S. at 321-22. “Involuntarily committed mental patients retain a liberty interest in conditions of reasonable care and safety and in reasonably nonrestrictive confinement conditions.” See McClam v. Chavez, 2006 WL 1663797 (D.S.C. 2006) (citing Youngberg, 457 U.S. at 324). To that end, this Court has held that a civilly committed individual under the Sexually Violent Predator's Act, SC Code §§ 44-48-60, et seq., most closely resemble the custody status of pretrial detainees. Treece v. McGill, 2010 WL 3781695, at *4 (D.S.C. 2010); see also Lasure v. Doby, 2007 WL 1377694, at *5 (D.S.C. 2007). The United States Supreme Court has “recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may.” Bell v. Wolfish, 441 U.S. 520, 537 (1979)). Permissible regulatory restraints include administrative and disciplinary measures used by responsible jail officials “to maintain security and order” in detention facilities. Williamson v. Stirling, 912 F.3d 154, 174-75 (4th Cir. 2018). If “a restriction imposed by the jail officials is for administrative purposes-which include managerial and security needs-the level of process to which the pretrial detainee is entitled is diminished.” Williamson, 912 F.3d at 175. Specifically, he must be given “some notice of the charges against him and an opportunity to present his views” to the deciding official, although that opportunity may be provided after the fact. Id. at 176-77; see also Gowen v. Enochs, No. 7:20CV00247, 2021 WL 960702, at *5 (W.D. Va. Mar. 15, 2021). Thus, officials must provide the pretrial detainee with at least an “informal, nonadversary review of the information” supporting segregation “within a reasonable time after confining him to administrative segregation.” Williamson, 912 F.3d at 184 (citation omitted).
Plaintiff alleges he was placed on wing restriction on November 5, 2021, and did not receive notice of the charges against him until November 9, 2021. 2042 Am. Complaint p. 2 (ECF No. 29). Plaintiff asserts that being placed on wing restriction means a resident is not allowed to move freely about the facility or attend groups, the law library, or recreation fields. Pl. Resp. p. 8 (ECF No. 44). As set forth in more detail above, Lawnrenz avers that Plaintiff was placed on wing restriction on November 5, 2021, as a result of his possession of pornography, which is categorized as a major violation, not as punishment but rather pending his hearing on the charge. Lawrenz averred that residents may be placed on secure management status when charged with a violation in order to remove the resident from general population, to search his room, belongings, and person for contraband, and temporarily hold them in a more secure setting. Lawrenz Aff. ¶ 21(f); Incident Report Regarding November 5, 2021, Pornography Violation (ECF No. 40-4). Though there is no documentation in the record of when Plaintiff received notice of the pornography charge, a hearing was held on November 11, 2021, at which Plaintiff pleaded guilty. He was not required to remain on wing restriction following the disposition of the charge. Lawrenz Aff. ¶ 21(k). Behavior Management Hearing Disposition Regarding Pornography Violation (ECF No. 40-5).
Plaintiff alleges he was again placed on wing restriction again after articles were confiscated on February 2, 2022, and he was given notice of the violation on February 8, 2022. 2042 Am. Complaint pp. 2-3. He does not specifically allege on what date he was placed on wing restriction regarding the February incident. Lawrenz asserts that though his Notice of Violation, which Plaintiff received on February 8, 2022, indicates that Plaintiff was currently on wing restriction, the notation was a clerical error and Plaintiff retained his current housing status and permissions, as evidenced by facility records demonstrating that Plaintiff visited the law library and participated in group sessions following the violation, which would otherwise have been unavailable to him if he had been on wing restriction. Lawrenz Aff. ¶ 22(f); Notice of Violation (ECF No. 44-1 p. 77); Law Library Communication Forms (ECF No. 40-7). Plaintiff argues that it does not matter whether the notation of a wing restriction was an clerical error or not because he believed it to be true and acted accordingly. A hearing was held on the charge on February 10, 2022, the charge was substantiated, and Plaintiff received a verbal warning. He was not placed on wing restriction. Behavior Management Hearing Disposition Regarding Articles (ECF No. 44-1 p. 78).
It is undisputed that Plaintiff received notice of the charges against him within four days of the November 2021 wing restriction and, viewing the facts in the light most favorable to Plaintiff, within six days of the February 2022 wing restriction. Further, hearings were held and the charges were resolved and Plaintiff was no longer on wing restriction at all within six and eight days of placement, respectively. Thus, Plaintiff fails to show that his due process rights were violated, and summary judgment is appropriate.
In his response to Defendants' motion, Plaintiff raises a “void for vagueness” argument, arguing that the facility rules are vague. “[A] law is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Likewise, vagueness principles are applied to prison regulations. Meyers v. Aldredge, 492 F.2d 296, 311 (3d Cir.1974). However, in the prison context, those principles are also viewed in light of the “legitimate needs of prison administration.” Id. Moreover, so as not to undermine the authority of prison officials, federal courts have generally deferred the interpretation of prison rules to prison officials, “unless fair notice was clearly lacking.” Id. Plaintiff argues that the facility rules are not clear that he was supposed to receive approval for publishing a newsletter, though it is undisputed that Plaintiff requested approval for his newsletter and it was later found with other residents prior to any approval being granted. Further, Plaintiff's due process claim raised in his amended complaint arises from his alleged placement on wing restriction without notice, and the undisputed facts reveal that Plaintiff was temporarily placed on wing restriction following his possession of pornography and not as a result of his newsletter. Thus, his void for vagueness argument is without merit.
D. Other Restrictions
Plaintiff also alleges that Defendants have “made [the SVPTP] program more restrictive th[a]n statu[t]es require” by not allowing access to the internet, by not allowing X-rated and R-rated movies, by not allowing electronic devices such as laptops or personal DVD players, by requiring pre-approval of calls to 1-800 phone numbers, and by taking away television sets from residents when their C.A.R.E. level falls below a certain threshold. 2043 Am. Complaint (ECF 1-1 at 74, 76, and 78). As set forth above, to determine whether a restraint to a civilly committed detainee passes constitutional muster, “the regulation is valid if it is reasonably related to legitimate penological interests,” such as security and the rehabilitation and treatment of sexually violent persons.
Matherly, 859 F.3d at 281.
In their affidavits, Lawrenz and Dr. Dube explain the relationship between the challenged restrictions and the penological objectives they serve. As Dr. Dube explains in her affidavit with regard to the SVPTP's restriction on internet use,
in addition to the obvious risks of accessing pornographic materials, resident treatment would also be undermined if residents were able to access other materials which, while not pornographic, could reinforce sexually deviant behavior. SVP residents are not allowed to possess photographs, for example, of other residents, of children, etc. Access to such materials would enable fantasy behaviors that would run counter treatment. Residents could also use the internet to contact past or potential victims, which in addition to posing a threat of harm to those victims would undermine resident treatment. The SVP resident population is an intelligent one for which internet access would enable endless possibilities for counter-therapeutic activity.Dube Aff. ¶24(a). As Dr. Dube's affidavit explains with regard to movies, “Residents of the SVP are not allowed access to sexually explicit content or to violent content, which for many residents has a sexual dimension. Such content would contribute to residents' dynamic risk factors and undermine SVP efforts at rehabilitation.” Dube Aff. ¶24(b). Further, Dr. Dube explains that the restriction on calls to unapproved 1-800 numbers has been put in place to prevent residents from engaging in counter-therapeutic behaviors such as calling phone sex services or contacting past or potential victims of sexual assault. Dube Aff. ¶ 24(c). As to the restriction of personal televisions from residents who fall below a certain CARE level, Dr. Dube avers that the system of CARE levels provides progressive privileges, such as possession of personal television sets, in accordance with responsible conduct by residents. Dube Aff. ¶ 25. When a resident commits a violation, his CARE level may be reduced following a hearing, which would result in the loss of the accompanying privileges. Dube Aff. ¶ 25. Defendants have shown through Dr. Dube's affidavit that these restrictions are reasonably related to the legitimate penological interests in the rehabilitation and treatment of sexually violent persons. Matherly, 859 F.3d at 281. Courts have routinely held that such restrictions do not violate the due process rights of sexually violent detainees. See, e.g., Bodnar v. Clendenin, No. 2:22-CV-1533 AC P, 2023 WL 3077653, at *4 (E.D. Cal. Apr. 25, 2023) (collecting cases regarding internet access restrictions); Huffv. Jackson, No. 2:13-CV-257-FTM-38, 2014 WL 3707914, at *5 (M.D. Fla. July 25, 2014) (collecting cases regarding restrictions against R-rated movies). Plaintiff has failed to show otherwise. Thus, summary judgment is appropriate on these claims as well.
E. Qualified Immunity
Even if Plaintiff could create an issue of fact as to his claims that Defendants violated his due process and equal protection rights, Defendants are entitled to qualified immunity as to any claim for damages. 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). “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)). 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 in light of the specific context of this case. Therefore, the individual Defendants are entitled to qualified immunity as to Plaintiff's claims for civil damages.
V. CONCLUSION
For the reasons set forth above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 40) be granted and these consolidated cases be dismissed in their entirety.
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