Opinion
C. A. 5:21-3779-RMG-KDW
03-23-2022
Dywain Camel McKenzie, Plaintiff, v. Sr. Cpl. Glisson and Sr. Cpl. Gregg-Wright, Capt. Sweat; and Lt. Martin, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Dywain Camel McKenzie (“Plaintiff”), proceeding pro se, is an inmate incarcerated in the Sumter Lee Regional Detention Center (“SLRDC”). He filed an Amended Complaint alleging a violation of his constitutional rights by Senior Corporals Glisson and Gregg-Wright, Captain Sweat, and Lieutenant Martin. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the Amended Complaint in this case.
I. Factual and Procedural Background
On December 1, 2021, the court issued an order notifying Plaintiff that his Complaint was subject to summary dismissal because he failed to allege sufficient factual allegations to state a claim. ECF No. 11. The order further advised Plaintiff he had until December 15, 2021, to file an amended complaint or otherwise cure the identified deficiencies in his pleadings. Id. Plaintiff filed an Amended Complaint on December 13, 2021. ECF No. 14.
Plaintiff says he was served with a disciplinary hearing notice on September 10, 2021, charging him with the institutional major offense threat against an inmate stemming from an incident with another inmate while he was on recreation. ECF No. 14 at 7. Plaintiff claims he requested an inmate representative be present at his hearing and he circled that option on the hearing notice. Id. Plaintiff says his disciplinary hearing was held before Senior Corporal Glisson on October 15, 2021. Id. Plaintiff claims he and his inmate representative requested a copy of the disciplinary hearing rules and procedures and a copy of the statutes for his charge, but Glisson neglected to grant his requests. Id. Plaintiff claims Glisson found him guilty and sentenced him to 30 days disciplinary segregation, 30 days loss of visitation, and 15 days loss of phone and canteen privileges in violation of the minimum standards for South Carolina Local Detention Facilities. Id. Plaintiff claims his hearing notice contained language that “this form shall be served 24 hours prior to the hearing date and time.” Id. at 8. Plaintiff contends other similarly situated inmates who had a disciplinary hearing after the 24-hour period was exceeded were sentenced to time served or the charges were dismissed. Id. at 8-9. Plaintiff claims he asked Gregg-Wright to use the kiosk to file an appeal for his disciplinary hearing, and after reviewing his hearing notice and sanctions, she denied his request. Id. at 9. Plaintiff says Gregg-White told him he would not touch the kiosk for 30 days. Id. Plaintiff claims he asked to use the kiosk to order his hygiene and writing materials to write his family and attorney, and she told him he had to wait 30 days. Id. Plaintiff says he informed her he had a right to appeal his disciplinary sanctions and to get legal calls from his attorney, and she had to give him free hygiene and writing materials to access the court and his counsel and to communicate with his family. Id. Plaintiff contends Gregg-Wright disagreed telling him the things he was requesting were a privilege. Id. Plaintiff argues Defendants' actions violated SLRDC policies and procedures. Id. at 10. Plaintiff says on November 1, 2021, his phone and canteen privileges were to be reinstated, but Gregg-Wright denied Plaintiff these privileges informing Plaintiff his privileges would be returned in 30 days. Id. at 11. Plaintiff alleges Senior Corporal Glisson informed Gregg-Wright that his sanctions were for 15 days and she told him she would need to hear that from Major Lumpkin or Director Ray. Id.. Plaintiff states he spoke with Captain Sweat on November 9, 2021 about his sanctions, and Sweat spoke with Major Lumpkin and Sweat informed Gregg-Wright that Major Lumpkin said to reinstate Plaintiff's phone and canteen privilege5. Id. at 11-12. Plaintiff says his privileges were reinstated on November 11, 2021. Id.
Plaintiff says he was out of his cell on November 17, 2021 for one hour of recreation and he purchased $50 of canteen items and placed these items in a bag between his Cell 118 and Cell 117. Id. at 12. Plaintiff claims he asked Gregg-Wright to pop his cell door and she grabbed his bag of canteen items accusing Plaintiff of trying to pass the bag to Cell 117. Id. Plaintiff claims he followed Gregg-Wright to the desk and Cpl. Gooden grabbed him by his jumpsuit and Plaintiff slapped his hands off. Id. Plaintiff says Gooden grabbed him two more times and each time Plaintiff slapped his hands off and told Gooden not to touch him. Id. Plaintiff said he left the desk, called his mother, and Gregg-Wright called backup and when Sweat and Glisson came into the pod, Gregg-Wright told them Plaintiff assaulted Gooden. Id. at 13. Plaintiff says they disconnected his call and escorted Plaintiff back to his cell and refused to return Plaintiff's canteen items. Id. Plaintiff says on November 18, 2021, Glisson served him with a disciplinary hearing notice charging him with assault on staff. Id. Plaintiff claims Glisson told Plaintiff, “I'm going to get you slayed this time.” Id.. Plaintiff says he requested an inmate witness and wrote the name of his witness on his hearing notice. Id. Plaintiff claims his disciplinary hearing was held on November 19, 2021, and he told Sweat and Glisson that it was a conflict of interest for them to hear his case. Id. at 14. Plaintiff says they called Lt. Martin to conduct the hearing with them. Id. Plaintiff claims his request to call his inmate witness was denied. Id. Plaintiff states he was found guilty and sentenced to 90 days of disciplinary segregation, and 90 days of loss of canteen, phone, and visitation privileges. Id. Plaintiff says he was not to be let out of his cell except for attorney visits, court, or medical reasons. Id. Plaintiff contends his disciplinary sanctions violated his rights under the SLRDC handbook. Id. at 14-16. Plaintiff alleges he asked Sweat and Glisson to file an appeal after his disciplinary hearing, and he was told he could file a grievance when his sanction time was up. Id. at 16. Plaintiff contends this violated his rights under the SLRDC handbook. Id. at 17. Plaintiff also claims his 90-day sentence for assaulting staff exceeded the maximum penalty for assault under South Carolina state law, and therefore violated state law and the SLRDC handbook. Id. at 17-18.
II. Discussion
A. Standard of Review
Plaintiff filed his Amended Complaint 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 a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
B. Analysis
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear that a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
1. Conditions of Confinement
The undersigned finds Plaintiff's conditions of confinement claims are subject to summary dismissal as Plaintiff has failed to allege sufficient facts to establish a violation of his constitutional rights. The Fourteenth Amendment proscribes incarcerating a pretrial detainee in conditions that “amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Conditions constitute punishment when there is “an ‘expressed intent' to punish” or “a lack of a reasonable relationship ‘to a legitimate nonpunitive governmental objective, from which a punitive intent may be inferred.'” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (quoting Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)). Conditions that “are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial.” Bell, 441 U.S. at 540; see also Feeley v. Sampson, 570 F.2d 364, 369 (1st Cir. 1978) (“[A]s the maintenance of institutional security directly serves the state's interest in ensuring the detainee's presence [at trial], jail order and security has been accepted as a consideration entitled to great weight when balancing the state's interest against the liberty interest of detainees.”). To demonstrate that conditions of confinement constitute cruel and unusual punishment, “[an inmate] must (1) establish that prison officials acted with ‘deliberate indifference' and (2) prove extreme deprivations of basic human needs or ‘serious or significant' pain or injury.” Smith v. Ozmint, 578 F.3d 246, 255 (4th Cir. 2009) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). To demonstrate that the conditions deprived him of a basic human need, a plaintiff must allege officials failed to provide him with humane conditions of confinement, such as “adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Although Plaintiff complains about the loss of visitation, phone, and canteen privileges, Plaintiff has failed to allege any facts that show being denied these privileges resulted in an extreme deprivation of basic human needs or a serious or significant pain or injury. Accordingly, Plaintiff has not shown a violation of his constitutional rights.
To the extent that Plaintiff is challenging his placement in disciplinary segregation, he fails to show a constitutional violation. To determine whether an “atypical and significant hardship” has been imposed, the Supreme Court has outlined a fact intensive inquiry into “(1) the magnitude of confinement restrictions; (2) whether the administrative segregation is for an indefinite period; and (3) whether assignment to administrative segregation had any collateral consequences on the inmate's sentence.” Incumaa v. Stirling, 791 F.3d 517, 530 (4th Cir. 2015) (citing Wilkinson v. Austin, 545 U.S. 209, 214 (2005)). Here, other than a loss of privileges, Plaintiff has alleged no other hardship associated with his segregation. Plaintiff was sentenced to maximum segregation for a period of 30 and 90 days, not an indefinite period. Plaintiff has also not alleged any collateral consequences on any sentence as he was a pretrial detainee. The undersigned recommends Plaintiff's conditions of confinement claim be dismissed.
2. Due Process Violations
Plaintiff's allegations about his disciplinary hearing are also insufficient to state a due process violation. Constitutional due process rights are only at issue when the prisoner is deprived of a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, 937 F.3d 257, 268 (4th Cir. 2019). Plaintiff alleges the loss of phone, visitation, and canteen privileges violated his due process rights. However, the loss of these privileges do not implicate protected liberty interests under due process. See U.S. v. Alkire, No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr. 10, 1996) (explaining there is no constitutional right to the use of a telephone in prison); Bennett v. Cannon, C/A No. 2:05-2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006) (explaining canteen access is not a protected liberty interest as [t]here is simply no freestanding constitutional right to canteen privileges at all.”); Allah v. Burt, 2010 WL 476016, at *6 (D.S.C. Feb. 3, 2010)(noting there is no inherent constitutional right to visitation). The undersigned recommends this claim be summarily dismissed.
Plaintiff's allegations that Defendants failed to follow the rules and procedures of SLRDC are also insufficient to state a due process violation. “The failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.” Johnson v. S.C. Dep't of Corrections, No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007); Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (explaining if state law grants more procedural rights that the Constitution requires, a state's failure to abide by that law is not a federal due process issue); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (holding violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983).
3. Discrimination
To the extent Plaintiff is attempting to allege a claim against Defendants for discrimination, this claim is also subject to summary dismissal. To succeed on an equal protection claim under the Fourteenth Amendment, 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.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).” The undersigned finds Plaintiff's allegations that he was punished more harshly than other inmates is insufficient to support a claim of discrimination. See Chapman v. Reynolds, 378 F.Supp. 1137, 1140 (W.D. Va. 1974) (noting a merely conclusory allegation of discrimination, without facts supporting the assertion that an officer's conduct was motivated by the litigant's race, is insufficient to state an actionable § 1983 claim). Accordingly, Plaintiff's discrimination claim should be summarily dismissed.
4. Personal Property
Plaintiff alleges his canteen items were improperly confiscated and never returned. ECF No. 14 at 12-13. The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. However, an intentional deprivation of property by a governmental employee does not violate the Due Process Clause if a meaningful post-deprivation remedy for loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Bogart v. Chapell, 396 F.3d 548, 561-63 (4th Cir. 2005) (finding that intentional destruction of a plaintiff's property did not violate the due process clause because South Carolina afforded a meaningful post-deprivation remedy for such loss). In South Carolina, a plaintiff may bring an action for recovery of personal property against officials who deprive him of property without state authorization. See McIntyre v. Portee, 784 F.2d 566, 567 (4th Cir. 1986) (citing S.C. Code Ann. § 15-69-10). Such an action provides “a post-deprivation remedy sufficient to satisfy due process requirements.” Id. (citing Parratt v. Taylor, 451 U.S. 527 (1981)). Because Plaintiff has an adequate state remedy available to address the alleged improper confiscation of his personal property, this claim is subject to summary dismissal.
III. Conclusion and Recommendation
By order issued on December 1, 2021, the undersigned gave Plaintiff an opportunity to correct the defects in his original Complaint and further warned Plaintiff that if he failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed without leave for further amendment. As discussed herein, Plaintiff's Amended Complaint fails to correct the deficiencies, and like the original Complaint, fails to state a claim upon which relief can be granted. Accordingly, the undersigned recommends the district court dismiss this action with prejudice. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).