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In Walker, the court's analysis of whether privately employed prison chaplains can be state actors for purposes of § 1983 is conclusory and unpersuasive.
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Civil Action No. 9:18-3186-DCC-BM
10-23-2019
Frankie Lee Walker, II, Plaintiff, v. Chaplain R. Morse, Mrs. Cummings and Sgt. Erikson, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C.§ 1983. Plaintiff, who at the time this action was filed was a pre trial detainee at the Aiken County Detention Center (ACDC), alleges violations of his constitutional rights by the named Defendants while he was incarcerated at the Detention Center.
42 U.S.C. § 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) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil 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).
Plaintiff is no longer an inmate at the Detention Center. See Court Docket No. 60 (Change of Address Notice).
The Defendant Morse filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on May 7, 2019. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on May 8, 2019, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's motion may be granted. Plaintiff thereafter filed a response in opposition to the Defendant Morse's motion on May 22, 2019.
The Defendant Cummings filed a motion for summary judgment on July 22, 2019, and a second Roseboro order was entered by the Court on July 23, 2019. Thereafter, the final Defendant Erikson also filed a motion for summary judgment on August 21, 2019, and a third Roseboro order was entered on August 22, 2019. However, notwithstanding the specific notice and warning as set forth in the Court's Roseboro orders, Plaintiff has never filed any responses in opposition to the motions for summary judgment filed by Cummings and Erikson.
The Defendants' motions are now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e), D.S.C. The Defendants have filed motions for summary judgment. As these are dispositive motions, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff alleges in his verified Amended Complaint that during the relevant time period (beginning in or around August 29, 2018) he was a pretrial detainee at the Aiken County Detention Center. The Defendant Morse is alleged to be a Chaplain, the Defendant Cummings is alleged to be the "kitchen supervisor", and the Defendant Erikson is alleged to be a "Sergeant".
In this Circuit, verified complaints by pro se litigants are to be considered as affidavits where the factual allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Plaintiff alleges that he is a Muslim, and that "Chaplain R. Morse is not doing his job properly in making sure Muslims are getting [their] rights [.]" Specifically, Plaintiff complains that Morse does not know anything about the Islamic faith, that he will not give Muslims Korans or any other type of study material, and that he does not make sure Muslims have a place to pray or provide prayer rugs. Plaintiff further complains about not getting a proper Muslim diet. Plaintiff alleges that the Defendant Cummings (the kitchen supervisor) told him that the jail does not have a "Halal or Kosher diet" for Muslim prisoners. Plaintiff also complains that he was placed on a no processed meat diet, but that he had not been receiving that diet but was instead given vegetarian trays. Plaintiff also complains that Cummings was not providing him with milk that he needed as a nutritional supplement, and generally complains about the quality of food he received while at the jail. Finally, Plaintiff complains that every time he asks Erikson for help on an issue, he always responds by telling him either it is not an issue or that what Plaintiff is doing is going to get him written up "or something of that nature". Plaintiff seeks injunctive relief against the Defendants (i.e., for them to be required "to fix how they treat Muslims here"), as well as monetary damages. See generally, Amended Complaint.
In support of summary judgment in the case, the Defendant Chaplain Ronald Morse has submitted an affidavit wherein he attests that he is employed by the Good News Jail and Prison Ministry, an independent contractor, to provide chaplain services to inmates at the ACDC. Morse attests that at no time was he ever employed by the State of South Carolina or the Detention Center, nor has he ever been compensated by the Detention Center or the State of South Carolina for any chaplain services he provides. Morse further attests that, in his role as a Chaplain, he from time to time receives requests from inmates related to their spiritual needs, which he forwards along to the shift command or to Captain Nick Gallam, the Detention Center Administrator. However, Morse attests that he has no authority or ability to approve any of these requests, to include dietary requests, requests for private praying areas, or requests for religious items such as Korans, prayer rugs, or rosary beads. Nor, as a Chaplain, did Morse have any authority over, or ability to influence, ACDC policy or protocol.
Morse attests that during Plaintiff's period of incarceration he requested a restrictive all vegetarian and no chemical diet based on his religious beliefs. Morse attests that he forwarded Plaintiff's request on to the jail administration, but that his request was ultimately denied for lacking a legitimate religious reason after records revealed that Plaintiff had been purchasing junk food from the commissary. Morse further attests that Plaintiff requested a private area where he and six other Muslin inmates could pray without anyone walking in front of them, and that he [Morse] also forwarded this request on to Captain Gallam. However, Morse attests that this request was also ultimately denied, both for safety reasons and because the Detention Center could not allow one particular religious group a private prayer area when other groups were not allowed the same. With respect to Plaintiff's request for a Koran, Morse attests that he forwarded Plaintiff's request on to jail administration. Morse also attests that Korans were, at all time relevant to Plaintiff's claims, available for purchase from the jail commissary. Even so, Morse attests that he contacted the Islamic Society of Augusta to request that they provide any donated Korans for inmates at the Detention Center, and that after the Islamic Society of Augusta sent some donated Korans, Plaintiff was eventually provided with one. Finally, Morse attests that although he does not recall Plaintiff ever making a request for a prayer rug, that he is generally familiar with the policies and procedures of the Detention Center, and that assuming any such request was ever made, it would have been denied because prayer rugs, like rosary beads, are considered contraband. See generally, Morse Affidavit.
The Defendant Irma Cummings has also provided an affidavit wherein she attests that she is employed by Trinity Services Group, Inc., a private corporation contracted to provide food services to the Aiken County Detention Center. Cummings attests that she serves as Trinity Food Service Director at the Detention Center, where her job duties include the planning, directing, and coordinating general activities and duties related to running the Detention Center's kitchen and all functions related thereto. However, Cummings attests that, as Food Service Director, she has no involvement in the creation of the menus and diets served to inmates at the Detention Center. Rather, Trinity employs a regional dietician who is responsible for, among other tasks, designing and reviewing menus pursuant to the specifications, directives and guidelines of the Detention Center. Cummings attests that the inmate menu for the Detention Center (both the regular menu and the alternative/vegan menu) provides a nutritionally adequate diet for sedentary and/or incarcerated adults, and satisfies the Dietary Reference Intakes/EARs recommendations published by the National Academy of Sciences - National Research Council, and also follows the Minimum Standards for Local Detention Facilities in South Carolina as well as the guidelines from the American Correctional Association (ACA).
Cummings has attached a copy of the menu for the Detention Center to her affidavit as Exhibit 1. Cummings attests that the regular menu provided to the inmates provides an average daily calorie count of 2,800 calories, while the alternative/vegan menu also provides an average daily calorie count of 2,800 calories. Cummings attests that, if consumed as prepared, the meals provided to the Plaintiff while he was housed at the Detention Center followed the Minimum Standards for Local Detention Facilities in South Carolina as well as the guidelines from the ACA. See Cummings Exhibit, at 00067-68. Cummings has attached to her affidavit a copy of the Detention Center's regular menu in effect from on or about July 6, 2018 through on or about June 3, 2019, a copy of the regular menu in effect from on or about June 3, 2019 through the present, and a copy of the Detention Center diet spread sheet for alternate diets, including medical diets and the vegan diet, that were in effect at the Detention Center from on or about June 3, 2019. See Cummings Exhibit, at 00006-66.
Cummings further attests that a religious diet is available for Detention Center inmates who request and are approved for the religious diet menu. The Detention Center specifies the type of religious accommodations that inmates may receive, as well as the manner in which the diets are served. However, Cummings attests that, as a Trinity employee, she does not approve (or disapprove) inmate requests for a religious diet, nor does she have any involvement in the decision or control over what alternative/religious diets are available to Detention Center inmates. Cummings further attests that a diet containing Halal certified meats is not available to inmates, but that the Detention Center offers a vegan diet, at least in part, to provide food that may be consumed by individuals who eat no meat due to religious beliefs and/or customs, and that this diet may be applicable to Halal, Kosher, and other religious diets as determined by the Detention Center.
Cummings attests that restricted/medical diets are also available for inmates whose medical conditions require specific dietary restrictions to preserve their health and well being. However, these restricted medical diets are based on medical necessity, not inmate food preferences, and the Detention Center Medical Department personnel must prescribe a specific restricted medical diet prior to the diet being served to an inmate. Cummings attests that once an inmate demonstrates to the medical provider that they are in need of a particular medical diet, the medical department sends a Restricted Diet Order Form to the Detention Center kitchen. However, Cummings attests that as an employee of Trinity, and not the Detention Center Medical Department, she cannot and does not prescribe medical diets, nor did she have any involvement with the Plaintiff's medical complaints, evaluations or treatments.
Finally, Cummings attests that one of her job duties is to supervise the food service supervisors who, in turn, supervise the creation and service of all meals, including medical diets. Cummings attests that Trinity employees, including herself, ensure that the proper diets are being prepared and served in accordance with an individual inmate's medical and/or religious orders. Cummings attests that she has searched the records she maintains at the Detention Center's kitchen, which show that on September 12, 2018 RN (Registered Nurse) Gallaway issued a Restricted Diet Order Form for the Plaintiff which provided that Plaintiff be given a nutritional support diet with an evening snack (noted as H.S. Snack on the order form) but which could not contain "any processed meats due to religious practices". See also, Exhibit (Cummings 00001). On October 8, 2018, LPN (Licensed Practical Nurse) Wright issued a Restricted Diet Order Form for the Plaintiff providing that Plaintiff was to be given a Kosher/Halal Diet, which is the vegan diet. Id., at Cummings 00002. On October 15, 2018, LPN Wright issued a modification to Plaintiff's October 8, 2018 Restricted Diet Order Form providing that Plaintiff be given a Kosher/Halal Diet along with a milk at every meal. Id., at Cummings 00003. On December 11, 2018, RN Galloway issued a Restricted Diet Order Form for the Plaintiff which provided that Plaintiff continue to be given nutritional support with an evening snack, but that he was no longer to be given the alternative vegan diet and was to be "put back on regular tray". Id., at Cummings 00004. Finally, on December 16, 2018, LPN Wright issued a Restricted Diet Order Form for the Plaintiff providing that Plaintiff's evening snack was to be a peanut butter sandwich until he was released or his weight was maintained. Id., at Cummings 00006. Cummings attests that at no time did she violate Plaintiff's right or treat him any differently than any other inmate. See generally, Cummings Affidavit, with attached Exhibits.
Discussion
The Defendants have moved for summary judgment on all of Plaintiff's claims. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while the Federal Court is charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, after careful review and consideration of the arguments and evidence provided, the undersigned finds for the reasons set forth hereinbelow that the Defendants are entitled to summary judgment in this case.
I.
First, since Plaintiff is no longer incarcerated at the Detention Center, to the extent he is seeking injunctive and/or declaratory relief (that the Defendants provide him the religious accommodations he is seeking), his claim is moot. Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 248-249 (4th Cir. 2005)[holding that former detainee's request for injunctive relief was moot]; Taggart v. Oklahoma, 74 Fed.Appx. 880, 882 (10th Cir. 2003)[Noting that inmate's claims concerning his medical needs against prison officials for injunctive relief were rendered moot by his release]; LaFlame v. Montgomery County Sheriff's Dep't., 3 Fed.Appx. 346 at * * 1 (6th Cir. Jan. 31, 2003)[same].
Therefore, Plaintiff's claim for injunctive and/or declaratory relief in this case should be dismissed. See United States Parole Commission v. Geraghty, 445 U.S. 388, 397 (1980) [Noting that the issue in controversy must "exist at the commencement of the litigation . . . [and] must continue throughout its existence"]; Powell v. McCormack, 395 U.S. 486, 496 (1969) ["[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome"].
II.
Plaintiff's claim for monetary damages survives his release from the Detention Center. See Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976). However, Plaintiff has failed present evidence sufficient to give rise to a genuine issue of fact that any named Defendant violated his constitutional rights.
Specifically with respect to the Defendant Morse, Plaintiff has provided no evidence to contest, and indeed does not even address in his response, Morse's evidence that he is not an employee of the Detention Center, but is instead a chaplain employed by a private ministry. To state a claim under § 1983, a plaintiff must allege 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 (1988). As an employee of a private ministry, Chaplain Morse is not a "state actor" acting under color of state law so as to subject him to suit in a § 1983 action. Cf. McGlothlin v. Murray, 993 F.Supp. 389, 408 (W.D.Va. 1997) [Finding that a chaplain employed by a private company providing chaplaincy services at a prison was not performing a governmental function], affd. 151 F.3d 1029 (4th Cir. 1998); Lee v. Johnson, No. 10-247, 2010 WL 3664060, at * 3 (W.D.Va. Sept. 17, 2010) [Finding that privately employed chaplain providing chaplaincy services at state prison not a state actor for purposes of a § 1983 claim]. Moreover, Morse attests that he had no control over the policies and procedures of the Detention Center with respect to the provision of religious materials or diets, and Plaintiff has provided no evidence, or even argument, to contest Morse's sworn statements that he was not responsible for the alleged deprivations of which he complains. As such, Plaintiff has failed to state a claim against Morse even if he had been a state actor. See Horton v. Marovich, 925 F.Supp. 540 (N.D.Ill. 1996) ["Thus, a plaintiff suing a government official in his individual capacity and therefore seeking to hold the official personally liable must show that the official personally caused or played a role in causing the deprivation of a federal rights"].
Therefore, Morse is entitled to summary judgment in this case.
III.
With respect to the remaining Defendants Cummings and Erikson, as public officials they are subject to suit for damages in their individual capacities in this § 1983 lawsuit. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Hafer v. Melo, 112 S.Ct. 358, 365 (1991); Goodmon v. Rockefeller, 947 F.2d 1186, 1187 (4th Cir. 1991). As Plaintiff was a pretrial detainee during the time period set forth in the Complaint, his claims against these Defendants are evaluated under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment, which is used to evaluate conditions of confinement for those convicted of crimes. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Even so, the underlying standard for determining whether either named Defendant violated Plaintiff's constitutional rights is essentially the same. See Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) [Holding that the Fourteenth Amendment guarantees at least Eighth Amendment protections]. Plaintiff's claims against these two Defendants are therefore discussed herein pursuant to this constitutional standard of review.
With respect to the Defendant Cummings, although she attests that she is employed by a private company which provides food services at the Detention Center and is not an employee of the Detention Center itself or otherwise a public employee, individual employees of food service companies providing contract food services to inmates have been found to be "public officials" for purposes of a § 1983 lawsuit. Cf. Smart v. Department of Corrections for Queen Anne's County, No. 17-3606, 2019 WL 3997128, at * 4 (D.Md. Aug. 19, 2019) [Finding that a private company may be held liable under § 1983 "when the State has delegated a traditionally and exclusively public function to a private actor", and because providing food service at a jail is a traditional government function, a private company which is under contract to provide such a necessity to detainees can be deemed a state actor]; Coleman v. Aramark, 31 F.Appx. 808, 809 (4th Cir. 2002) [Assuming without deciding that Aramark acted under color of state law for purposes of § 1983 by performing the traditional governmental function of providing food service at the jail]; Mozden v. Helder, No. 13-5160, 2014 WL 2986711, at * 2 (W.D.Ak. July 2, 2014) [Collecting cases and holding that prison food service providers are state actors because the food service provider has assumed the State's constitutional obligation to provide a nutritionally adequate diet to inmates].
With respect to his diet claim against Cummings, Plaintiff has provided no evidence to support the general and conclusory assertions in his Complaint that Cummings violated his constitutional rights by failing to provide him with a proper Muslim diet. Although Plaintiff alleges in his Complaint (assumed to be true for purposes of summary judgment) that he asked for a Halal or Kosher diet, he does not state or provide any evidence for what any such diet would consist of, nor does he anywhere define (or provide any evidence to show) what a proper or required "Muslim" diet is or would be or establish why the diet be received did not meet the requirements of what he was allowed to consume per his religion. While Plaintiff complains that he is not a "vegan" and that he is not being provided with his "religious diet", he has simply provided no evidence to show how the diet he received at the jail (as set forth in Cummings' affidavit and as further evidenced by the attached dietary exhibits, including exhibits showing the diet Plaintiff was receiving) violated his constitutional rights. Cf. Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006) [Noting that Plaintiff must show a conscious or intentional interference by the Defendants with his First Amendment free exercise rights to state a valid claim under § 1983]; Baber, 977 F.2d at 874-875 [Plaintiff required to respond to motion for summary judgment with specific facts showing a genuine issue for trial]. Although Plaintiff was obviously dissatisfied with the food he received at the jail, he must do more than just merely set forth his own unsupported and self-serving personal opinion that his diet was not "constitutionally" sufficient to avoid summary judgment. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) ["Even though pro se litigants are held to less stringent pleading standards than attorneys the court is not required to 'accept as true legal conclusions or unwarranted factual inferences.'"]; Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)["Deliberate indifference [the standard for a constitutional claim] is a very high standard - a showing of mere negligence will not meet it."]; Bailey v. Kitchen, No. 08-141, 2009 WL 102534, at * 3 (D.S.C. Jan. 12, 2009)["Assuming a diet's nutritional adequacy, prison officials have the discretion to control its contents"]; Riley v. DeCarlo, 532 Fed.Appx. 23, 28 (3rd Cir. 2013) [No constitutional violation for prison's failure to serve Halal diet to inmate where alternative meals met inmate's dietary requirements); cf. Ayers v. Uphoff, 1 Fed.Appx. 851, 855 (10th Cir. 2001) [Where prisoner complained about substitute food that he was being provided on special diet, the court held that "Plaintiff [had] no constitutional right to preselect foods or demand a certain variety of foods, and that Plaintiff's dissatisfaction with menu at the prison [was] not sufficient to support an Eighth Amendment claim".].
As noted, Plaintiff did not even file a response to Cummings' motion for summary judgment.
Moreover, Plaintiff has also provided no evidence to show that, even if his dietary requirements were not being met, that Cummings had control over the food he was to receive. Cummings attests that she provided Plaintiff with the diet he was assigned to receive by jail and medical officials, but that she was not responsible for, and had no control over, what his food tray assignments were. See Cummings Affidavit. Again, Plaintiff did not even respond to Cummings' motion for summary judgment, and has provided no evidence to show that Cummings should be held liable for any dietary insufficiencies in his food assignments (assuming he had submitted evidence to establish any such insufficiencies). Cf. Malik v. Sligh, No. 11-1064, 2012 WL 3834850, at * 5 (D.S.C. September 4, 2012), aff'd. 507 Fed. Appx. 294 (4th Cir. 2013) [Finding that a self serving affidavit from the Plaintiff was "simply not enough to create a genuine dispute as to any material fact" in light of the other evidence that disputed the credibility of Plaintiff's self serving claims]; see also Horton, 925 F.Supp. 540 ["Thus, a plaintiff suing a government official in his individual capacity and therefore seeking to hold the official personally liable must show that the official personally caused or played a role in causing the deprivation of a federal rights"]. Therefore, Cummings is entitled to summary judgment in this case.
Finally, with respect to the Defendant Erikson, Plaintiff has not presented any evidence to show or give rise to a genuine issue of fact that Erikson, a Sergeant at the Detention Center, violated any of his constitutional rights. Plaintiff did not respond to Erikson's motion for summary judgment, and simply states in his Complaint that every time he asked Erikson for help "for an issue", Erikson always responded by telling him why it was not an issue or why what he was doing was going to get him written up or "something of that nature". Plaintiff does not even identify what "issues" he asked Erikson about, nor has he set forth any factual allegations in his Complaint to show any personal participation by this Defendant in the deprivation of any of the Plaintiff's constitutional rights, including specifically his religious rights, as he has presented no facts or evidence, or even alleged how (or whether), Erikson was involved in any decisions relating to what diet or diet trays he was to receive, whether or not Plaintiff could have a Koran or prayer rug, or any other decisions relating to his particular complaints (as more specifically set out in his allegations against Morse and Cummings) in his pleading. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1999) ["Liability . . . must be based on the personal involvement of the Defendant"], cert denied, 522 U.S. 1154 (1999). Indeed, as a Sergeant at the Detention Center, it is unclear what authority Erikson would have had with respect to the setting of religious or dietary policy at the jail. In any event, Plaintiff has certainly not presented any evidence on this point. Baber, 977 F.2d at 874-875 [Plaintiff required to respond to motion for summary judgment with specific facts showing a genuine issue for trial].
Plaintiff also does not mention Erikson in the response he did file to the Defendant Morse's motion for summary judgment. While Plaintiff complains in that response about nothing having been done in response to grievances he filed, even if this is his complaint against Erikson (although he does not mention Erikson when discussing this issue), that would not state a viable constitutional claim against Erikson, as there is no constitutional right of access to a grievance procedure. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) [existence of a prison grievance procedure does not confer any substantive right upon inmates]; Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Brown v. Dodson, 863 F.Supp. 284 (W.D.Va. 1994) [inmates do not have a constitutionally protected right to a grievance procedure]; Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill. 1982) [even where a state elects to provide a grievance mechanism, violations of its procedures do not deprive prisoners of federal constitutional rights]; Burnside v. Moser, 138 Fed.Appx. 414, 415-416 (3d Cir. June 30, 2005). Therefore, a defendant's failure to follow a jail grievance procedure (even if that had been shown in this case) does not give rise to a § 1983 claim. Spencer v. Moore, 638 F.Supp. 315, 316 (E.D.Mo. 1986) [holding that an inmate grievance procedure is not constitutionally required]; see also McGuire v. Forr, No. 94-6884, 1996 WL 131130, at *1 (E.D.Pa. March 21, 1996), aff'd, 101 F.3d 691 (3d Cir. 1996) [creation of a grievance system by a state does not create any federal constitutional rights, as prisoners are not constitutionally entitled to a grievance procedure]; Moore v. Sergent, No. 01-1271, 2001 WL 1355298 (6th Cir. Oct. 26, 2001); cf. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) [prison officials may place reasonable limits on prisoner's access to grievance procedure].
Plaintiff did submit two documents (although not in response to Erikson's motion for summary judgment) discussing incidents involving Erikson from January and May 2019. See Court Docket Nos. 20-1, 47-1. However, these incidents occurred well after the filing of this lawsuit, and are not part of the claims considered herein. See also Court Docket No. 51; Prison Litigation Reform Act [PLRA], 42 U.S.C. § 1997e(a) [Providing that "[n]o action shall be brought with respect to prison conditions under section 1983 of this Title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted"]; cf. Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) [Prisoner may not pursue claims in a federal lawsuit before exhausting his administrative remedies].
Erikson did not submit an affidavit; however, it is clear from the other evidence submitted that the administrator of the Detention Center was Nick Gallum, who is not named as a Defendant in this case. For his part, of course, Plaintiff has submitted no evidence to establish a genuine issue of fact that Erikson was responsible for any of the actions or treatment of which he complains. Drakeford v. Thompson, No. 09-2239, 2010 WL 4884897, at * 3 (D.S.C. November 24, 2010), citing Larken v. Perkins, 22 Fed. Appx. 114, 115 (4th Cir. 2001) [Noting that non-movant's "own, self-serving affidavit containing conclusory assertions and unsubstantiated speculation, . . . [is] insufficient to stave off summary judgment"].
In order for Erikson to be liable to the Plaintiff in this case, Plaintiff must have evidence to support his conclusory claim in his Complaint that Erikson engaged in conduct against him sufficient to amount to a constitutional violation. House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim]; Carmen v. San Fran. United Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) [The Court is "not required to comb through the record to find some reason to deny a motion for summary judgment"] (quotation omitted). Plaintiff has failed to submit any such evidence. Therefore, Erikson is also entitled to summary judgment in this case.
Conclusion
Based on the foregoing, it is recommended that the Defendants' motions for summary judgment be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge October 23, 2019
Charleston, South Carolina
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).