Opinion
Case No. 2:19-cv-1965-CMC-MGB
09-12-2019
Warren Russell, Plaintiff, v. Bryan Stirling and Martin Frink, Defendants.
REPORT AND RECOMMENDATION
This is a civil action under 42 U.S.C. § 1983. Plaintiff Warren Russell is a state prisoner representing himself and proceeding in forma pauperis. Under Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review the complaint and to submit a recommendation to the United States District Judge. For the following reasons, the undersigned recommends the complaint be summarily dismissed, in part.
BACKGROUND
Plaintiff is a South Carolina state prisoner. Defendant Brian Stirling is the director of the South Carolina Department of Corrections. Defendant Martin Frink is the warden of a prison in Mississippi.
Until last year, Russell was confined in a state-run prison in South Carolina. (Dkt. No. 2-1 at 1.) Last June, however, he was transferred twice—first to another state-run prison in this state, and then to Frink's prison in Mississippi. (Id. at 4-5.) Russell alleges he was transferred without any notice, hearing, or explanation. (Id. at 4-5, 11-12.) He further alleges he was targeted for transfer because he is black. According to Russell, he is one of forty-eight prisoners transferred to Mississippi; forty-five are black, and only three are white. (Id. at 12.) Twenty-seven are black prisoners from maximum-security prisons; none are white maximum-security prisoners. (Id.) Russell also alleges that, by being transferred, he has been denied certain rights and opportunities, such as the opportunity to participate in character-based units and to receive the benefits that come with participating in those units. (Id. at 11-12.) Finally, he alleges that his long-distance transfer has made it too hard for people to visit him. (Id. at 7-8).
Russell asserts he has been denied due process, equal protection, and access to the courts. (Dkt. No. 2 at 4.) He bases his claims the First, Sixth, Eighth, Tenth, Twelfth, and Fourteenth Amendments, as well as South Carolina law and South Carolina Department of Corrections policies. (Id.; Dkt. No. 2-1 at 2.) He seeks damages, an injunction, and a declaratory judgment. (Dkt. No. 2-1 at 2.)
PROCEDURAL HISTORY
Russell commenced this case in June 2019 by filing his complaint along with one from another prisoner, David Harrell. (See Dkt. No. 1.) After the Court severed Russell's claims from the original case (Id.), the undersigned issued an order notifying Russell that portions of his complaint were subject to summary dismissal for failure to state a claim. (Dkt. No. 7.) The undersigned provided Russell an opportunity to amend his complaint and notified him that, if he did not cure the defects in his complaint, she would recommend it be partially summarily dismissed. (Id. at 3-4.)
Russell did not submit an amended pleading. This case is therefore ripe for initial screening.
STANDARD OF REVIEW
The granting of in forma pauperis status in a case triggers a district court's duty to "sift out claims that Congress found not to warrant extended judicial treatment." Nagy v. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004). The Court must dismiss any cases that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. § 1915(e)(2)(B). Those same criteria are grounds for dismissing a case filed by a prisoner. 28 U.S.C. § 1915A(b).
As to failure to state a claim, a complaint filed in federal court "'must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court need not, however, accept as true a complaint's legal conclusions. Id. When "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Because Russell is pro se, the undersigned has screened the complaint liberally and considered whether it includes any potential grounds for relief. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). That does not mean, however, the Court can ignore a clear failure to allege facts that set forth a cognizable claim. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
DISCUSSION
Construed liberally, Russell's equal-protection claim against Stirling about race-based prison transfers is not subject to summary dismissal. However, the remainder of the complaint fails to state a facially plausible claim for relief.
First, as to Russell's due-process claims, courts have consistently held that because prisoners have no liberty interest in being confined in a particular prison, transferring prisoners to out-of-state prisons does not violate due process. See, e.g., Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996); James v. Maynard, No. AW-09-2885, 2011 WL 743814, at *2 (D. Md. Feb. 22, 2011), aff'd, 433 F. App'x 167 (4th Cir. 2011); Scheuerman v. Bozman, No. DKC 09-1386, 2010 WL 761125, at *5 (D. Md. Mar. 1, 2010), aff'd, 382 F. App'x 284 (4th Cir. 2010). Consequently, Russell's due-process claims should be summarily dismissed.
Second, as to equal protection, Russell has alleged that, in his current facility, he does not have access to institutional opportunities that prisoners in South Carolina prisons can enjoy. However, "[f]or equal protection purposes, inmates transferred pursuant to the Interstate Corrections Compact are 'similarly situated' to those inmates in the receiving institution." Tucker v. Angelone, 954 F. Supp. 134, 136-37 (E.D. Va.), aff'd sub nom. Tucker v. Com. of Va. Dep't of Corr., 116 F.3d 473 (4th Cir. 1997) (table). Russell has not alleged facts indicating that, with regard to prison opportunities, he has been denied anything that similarly situated inmates in his Mississippi prison have obtained. Thus, that claim is subject to summary dismissal.
Third, although it is not clear, Russell appears to be alleging that the transfer's impact on his ability to have visitors amounts to cruel and unusual punishment, in violation of the Eighth Amendment. However, that allegation does not "rise to the level of a deprivation of a basic human need in violation of the Eighth Amendment" because a reduction in visitation opportunities that results from an inmate transfer is "not arbitrary or a total ban on all forms of human contact." Petrovic v. Hollenback, No. 5:16-CT-3097-BO, 2017 WL 2423656, at *5 (E.D.N.C. Feb. 8, 2017) (citing Overton v. Bazzetta, 539 U.S. 126, 136-37 (2003), and other cases), appeal dismissed, 686 F. App'x 165 (4th Cir. 2017) (per curiam). To the extent Russell may be asserting an Eighth Amendment claim, it is subject to summary dismissal.
Fourth, Russell has also cited the First, Sixth, Tenth, and Twelfth Amendments as grounds for his lawsuit. However, the complaint alleges no facts in support of those claims. Thus, those claims are subject to summary dismissal. See Twombly, 550 U.S. at 557 (a complaint that offers only "naked assertion[s]" of a claim is not sufficient).
Fifth, Russell bases his claims in part on the South Carolina Constitution, South Carolina statutory law, and Department of Corrections policies. He also alleges he has been defamed, and defamation is a state-law cause of action. Section 1983 claims cannot be based on violations of state law. See, e.g., Riccio v. Cty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990) (if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue); Garrett v. Aube, No. 8:18-cv-1449-MGL-JDA, 2018 WL 3628848, at *2 (D.S.C. May 31, 2018) (no § 1983 liability for alleged defamation), report and recommendation adopted, 2018 WL 3619823 (D.S.C. July 30, 2018); Johnson v. S.C. Dep't of Corr., No. 3:06-cv-2062-CMC, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, did not amount to a constitutional violation") (citation omitted)). Thus, Russell's § 1983 claims that are premised on violations of state law are subject to summary dismissal.
Russell has not asserted any causes of action directly for violation of state law. Rather, his state-law allegations all appear to be the premises of his federal § 1983 claims. Thus, the undersigned has not considered whether Russell has adequately alleged any standalone state-law causes of action.
Finally, defendant Frink is subject to dismissal because Russell has not made any allegations against him. See Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (to be liable under § 1983, a defendant must have been personally involved in the depravation of the plaintiff's federal rights).
CONCLUSION
For the above reasons, the undersigned recommends that the Court summarily dismiss all claims against defendant Frink and all claims against defendant Stirling except for the race-based equal-protection claim against him.
IT IS SO RECOMMENDED. September 12, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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 835
Charleston, South Carolina 29402
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).