Opinion
C. A. 9:22-cv-04638-BHH-MHC
09-13-2023
Larry Anthony White, Plaintiff, v. Bryan Stirling, Charles Williams, Daniel Harouff, Kenneth Myers, and South Carolina Department of Corrections, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Larry Anthony White (“Plaintiff”), proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was incarcerated within the South Carolina Department of Corrections (“SCDC”). ECF No. 1. Plaintiff originally filed this action in the Court of Common Pleas for Greenville County. Defendants Bryan Stirling, Charles Williams, Daniel Harouff, Kenneth Myers, and SCDC (collectively, “Defendants”) removed this action to this Court and filed an answer on December 22, 2023.
Defendants have now filed a Motion for Summary Judgment (“Motion”). ECF No. 20. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition. ECF No 24. Defendants filed a Reply. ECF No. 25. Plaintiff filed a Sur-Reply. ECF No. 26. The matter is, therefore, ripe for review.
The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, the undersigned has considered the Sur-Reply in making this Report and Recommendation, as Plaintiff is pro se.
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 Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff's suit arises from his incarceration at Perry Correctional Institution (“PCI”). Plaintiff alleges cruel and unusual punishment, denial of access to the courts, and unreasonable search and seizure, in violation of his First, Fourth, Eighth, and Fourteenth Amendment rights. ECF No. 1-1 at 9. Specifically, Plaintiff alleges that two boxes of legal materials were improperly taken from him and never returned. ECF No. 1-1 at 7. Defendants provided the Court with affidavits and relevant documents which detail the underlying incident at issue. Unless otherwise noted, the following facts are undisputed.
Additionally, Plaintiff maintains that the strip searches at PCI are unreasonable and violate his constitutional rights. ECF No. 1-1 at 8-9. However, as detailed below in the Discussion section, this claim is not properly before the Court, as Plaintiff has not exhausted his administrative remedies on this claim.
Regarding the legal materials that were allegedly improperly taken from Plaintiff, Defendants provided the affidavit of Tamara Conwell, who is the Postal Director at PCI and works in the mailroom. ECF No. 20-2. Part of her job responsibilities are to monitor incoming and outgoing mail and process incoming and outgoing legal mail. ECF No. 20-2 at 1. Ms. Conwell averred that legal mail is defined by SCDC policy as “mail sent out to, or received from, officials of federal, state, and local courts, attorneys, court clerks, judges, legal aid societies such as the American Civil Liberties Union, attorneys' authorized representatives, the South Carolina Attorney General, the United States Attorney General, and SCDC Office of General Counsel.” ECF No. 20-2 at 2. She explained that regular mail and legal mail are treated differently.
Specifically, regular inmate mail, both incoming and outgoing, is scanned for contraband or other security concerns. ECF No. 20-2 at 1-2. Ms. Conwell noted that if contraband or other security concerns are suspected after scanning the mail, the mail may be read to further determine if it contains contraband or presents a security risk, and if it does, then the mail is either forwarded to security personnel or to the Correspondence Review Committee (“CRC”) in Columbia for review. ECF No. 20-2 at 1-2.
On the other hand, when an inmate receives legal mail, it will be opened and inspected in the presence of the inmate by mailroom staff or their designee. ECF No. 20-2 at 2. Ms. Conwell averred that when an inmate receives legal mail, she will send the inmate an order to report to the mailroom and the inmate must sign for the legal mail. See ECF No. 20-2 at 1. However, when an inmate is housed in the Restricted Housing Unit (“RHU”), the legal mail is delivered to the inmate in the RHU where it is opened in the inmate's presence and the inmate signs for the legal mail. See ECF No. 20-2 at 1-2; ECF No. 1-1 at 7.
Ms. Conwell testified that on September 29, 2022, Plaintiff received two large boxes of what was initially determined to be legal mail because the boxes had a return address from a law firm. ECF No. 20-2 at 2. At approximately 10:20 AM, Ms. Conwell and Mental Health Officer Tamesha Strong delivered the boxes to Plaintiff, who is housed in the RHU. ECF No. 20-2 at 2; ECF No. 1-1 at 7. Ms. Conwell returned to the mailroom, and at approximately 12:15 PM, she received a phone call from an unidentified female who stated that she had a tracking number on the boxes and wanted to confirm they had arrived. ECF No. 20-2 at 2. Ms. Conwell informed the unidentified female that the boxes had arrived and then asked if she was from the law firm that sent the boxes. ECF No. 20-2 at 2. The female caller hesitated and then said yes. ECF No. 20-2 at 2.
Ms. Conwell averred that she became suspicious from the interaction and decided to investigate the law firm that purportedly sent the boxes. ECF No. 20-2 at 2. She first found that the return address, 1590 Jonesboro Road Southeast, Atlanta, GA 30315 is the address for a U.S. Post Office, and further found that the law firm was located in Columbus, Georgia, not Atlanta. ECF No. 20-2 at 2-3. Ms. Conwell then called the law firm, and the law firm informed Ms. Conwell that they did not send any legal mail to Plaintiff and did not know Plaintiff. ECF No. 202 at 3. After speaking with the law firm, Ms. Conwell notified Major Earley about what had occurred. ECF No. 20-2 at 3. Major Earley then notified Defendant Williams of the situation. ECF No. 20-4 at 2.
In his affidavit, Defendant Williams stated that because the mail was not from a law firm as it was initially represented, it would not be “legal mail” and would instead be considered contraband. ECF No. 20-4 at 2. Defendant Williams averred that he was concerned that all or some portion of the items had been sprayed with a synthetic drug called K-2. ECF No. 20-4 at 2. He stated that K-2 is an illegal drug that can be sprayed onto paper or other items, and inmates then either smoke or ingest the paper. ECF No. 20-4 at 2. He averred that K-2 can cause numerous health issues, it is a serious security concern if this drug is able to enter the prison, and the drug has been a problem in SCDC and in prisons across the country. ECF No. 20-4 at 2. Based on the information from Ms. Conwell, Defendant Williams determined that they needed to get the boxes of material back from Plaintiff. ECF No. 20-4 at 2. Defendant Williams contacted Defendant Harouff and instructed him to retrieve the materials. ECF No. 20-4 at 2.
Defendant Harouff testified in his affidavit that he and Defendant Myers went to Plaintiff's cell and explained to Plaintiff that they needed to get into his room. ECF No. 20-5 at 2. Because inmates housed in RHU are required to be placed in handcuffs or other appropriate restraints before entering their cell, Plaintiff was handcuffed, and Defendant Harouff entered the cell. ECF No. 205 at 2. Defendant Harouff averred that Plaintiff was in the process of going through the boxes, but the materials contained in the boxes were still largely together at that time. ECF No. 20-5 at 2-3. He averred that he removed all of Plaintiff's legal materials, went through to make sure there was no contraband, and then returned all materials except for those contained in the boxes that Plaintiff had just received. ECF No. 20-5 at 3.
Plaintiff's allegations regarding this interaction are largely consistent with Defendant Harouff's affidavit. See ECF No. 1-1 at 7-8. Plaintiff alleges that he became nervous when Defendant Harouff informed Plaintiff that he would need to go through the materials to make sure it was not contraband, because Defendant Harouff was named as a defendant in the lawsuit to which the alleged legal material pertained. ECF No. 1-1 at 7. Plaintiff alleges that he was handcuffed and walked out of his cell, and then Defendant Harouff walked into the cell and confiscated the documents. ECF No. 1-1 at 7. Plaintiff maintains that he was under the impression that Defendant Harouff was going to scan through the documents in his presence-as required by SCDC policy-but Defendant Harouff did not do that. ECF No. 1-1 at 8.
The materials confiscated from the boxes were sent to the CRC, which is located at SCDC Headquarters in Columbia. ECF No. 20-2 at 3. Ms. Conwell averred that if there are questions about whether an inmate can receive materials, they are sent to the CRC who makes that determination. ECF No. 20-2 at 3. Both Defendant Harouff and Defendant Williams averred that the materials in the boxes were considered contraband, and that the materials could have been “rejected” at that point because they had a fraudulent address, but the materials were nevertheless sent to the CRC for review. ECF No. 20-4 at 2; ECF No. 20-5 at 3. Defendant Williams and Defendant Harouff testified that they did not have further involvement after the materials were sent to the CRC. ECF No. 20-4 at 2; ECF No. 20-5 at 3. Ms. Conwell testified that the CRC reviewed the materials and determined the materials were not legal materials. ECF No. 20-2 at 3. The CRC sent Plaintiff a notice that the materials had been rejected, which Ms. Conwell attached to her affidavit. ECF No. 20-3.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 20. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue they are entitled to summary judgment for two main reasons. First, they argue dismissal is appropriate under the Prison Litigation Reform Act (“PLRA”). See ECF No. 201 at 16-18, 21-22, 23-24. Second, they argue that Plaintiff has not shown essential elements of a § 1983 action. See ECF No. 20-1 at 1-15, 19-24. The undersigned agrees Plaintiff did not exhaust his administrative remedies as to some of his claims, and further agrees that Plaintiff has failed to sustain a cognizable § 1983 action.
A. Dismissal pursuant to the PLRA
Defendants argue Plaintiff did not exhaust his administrative remedies as to any claims involving strip searches, that Plaintiff's action should be dismissed as “frivolous” under the PLRA, and that the PLRA bars § 1983 claims where a prisoner does not suffer more than de minimis injury. See ECF No. 20-1 at 16-18, 21-22, 23-24. The undersigned agrees Plaintiff did not exhaust his administrative remedies as to any claims involving strip searches; however, Defendants' other arguments for dismissing Plaintiff's Complaint under the PLRA are without merit.
1. Failure to exhaust
Defendants argue they are entitled to relief because Plaintiff did not exhaust his administrative remedies before filing this action as required by the PLRA, 42 U.S.C. § 1997e(a). The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).
Here, Defendants argue that Plaintiff failed to exhaust his administrative remedies with regard to the alleged improper strip searches of inmates in the RHU. In support of this affirmative defense, Defendants submitted the affidavit of Felecia McKie (“McKie”), who is the Agency Inmate Grievance Coordinator/Branch Chief of SCDC. ECF No. 20-8. As Agency Inmate Grievance Coordinator, McKie is tasked with supervising the Inmate Grievance System. ECF No. 20-8 at 1. As a result, she has access to inmate grievance records at SCDC. See ECF No. 20-8.
Defendants state that Plaintiff failed to exhaust the administrative remedies prior to filing this action, such that the entire action should be dismissed. ECF No. 20-1 at 18. However, Defendants' argument and evidence regarding this affirmative defense only applies to the allegedly improper strip searches.
In her affidavit, McKie detailed the grievance system and noted the steps an inmate must take to properly exhaust the administrative process. ECF No. 20-8 at 1-3. SCDC has a three-step grievance process. First, an inmate must submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) in an effort to resolve the grievance informally. ECF No. 20-8 at 2. Second, if informal resolution fails, the inmate must file a Step 1 Grievance Form, setting forth the issue grieved. ECF No. 20-8 at 2. Third, inmates may then appeal an SCDC decision as to the Step 1 Grievance by filing a Step 2 Grievance Form. ECF No. 20-8 at 2. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue.
In addition to the materials Defendants attached to their Motion, the undersigned takes judicial notice of other cases that have detailed the grievance procedure. See Smyth v. Stirling, No. 0:21-CV-00649-RBH, 2022 WL 3367759, at *3 n.6 (D.S.C. Aug. 16, 2022) (collecting cases).
As McKie explained, inmates are required to informally resolve their issues via a RTSM before filing a Step 1 Grievance, and inmates must demonstrate compliance with this requirement by submitting a copy of, or reference number for, the answered RTSM Form. ECF No. 20-8 at 2. If an inmate fails to do this, the grievance is returned to the inmate without a substantive response. ECF No. 20-8 at 2.
McKie reviewed Plaintiff's grievance history and attested that Plaintiff did not follow and/or use all of the options available to him through SCDC's Inmate Grievance System to address matters raised in the action before this Court. ECF No. 20-8 at 2-3. Specifically, McKie averred that Plaintiff's claims in his Complaint-that it is improper to strip search inmates in RHU each time they exit or return to their cells-were raised in grievance number PCI 385-22. ECF No. 208 at 2. This Step 1 Grievance, which is attached to McKie's affidavit, was received by the Inmate Grievance Coordinator on July 18, 2022. ECF No. 20-8 at 2. This Step One Grievance was returned to Plaintiff on July 21, 2022, because Plaintiff failed to attach a RTSM Form showing he attempted an informal resolution of the issue. ECF No. 20-8 at 3; ECF No. 20-9. McKie avers that Plaintiff has not filed an additional grievance on this issue, and thus has not exhausted the remedies available to him under the SCDC grievance procedure.
Consequently, Defendants have shown that Plaintiff failed to exhaust his administrative remedies regarding the alleged improper strip searches of inmates in the RHU prior to initiating this action. See Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff”').
In his Response in Opposition, Plaintiff argues, in a single sentence, that his action should not be dismissed because SCDC's grievance system is “nothing more than a single dead end and never addresses the issue at hand and never offers assistance.” ECF No. 24-1. Plaintiff does not meaningfully expand or elaborate on this argument sufficiently to show that his administrative remedies were unavailable. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Plaintiff has not argued or put forth any evidence that he was unable to avail himself to the grievance procedure or otherwise demonstrated that he was prevented from exhausting his administrative remedies. See Graham, 413 Fed.Appx. at 663 (noting Fourth Circuit precedent holds that “in order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure” (citing Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008))). Consequently, Plaintiff has failed to demonstrate that SCDC's administrative remedies were “unavailable” to him-that is, that the procedures “operate[d] as a dead end,” were so opaque that they were “incapable of use,” or SCDC officials actively “thwart[ed] inmates from taking advantage” of the process. See Ross v. Blake, 578 U.S. 632, 643-44 (2016). Accordingly, Defendants' Motion regarding any claims for improper strip searches should be granted.
Ross recognized that the PLRA contains its own textual exception to the mandatory exhaustion requirement, noting the requirement hinges on the “availability” of administrative remedies-that is, an inmate “must exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. The Supreme Court set forth three scenarios where the administrative process, although officially on the books, might be considered “unavailable” for purposes of exhausting under the PLRA. Id. at 643-44. The Court held an administrative procedure is unavailable (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) when it is “so opaque that it becomes, practically speaking, incapable of use;” and (3), “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. Facts supporting the existence of any of these scenarios could remove an inmate's obligation to exhaust his administrative remedies. Id. Even considering the additional arguments in Plaintiff's Sur Reply, ECF No. 26, Plaintiff does not set forth any argument or provide any evidence that supports the existence of any of the above scenarios.
2. Other arguments under the PLRA
Defendants also argue dismissal of Plaintiff's Complaint is appropriate under the PLRA for two additional reasons. ECF No. 20-1 at 21-22, 23-24. First, Defendants argue that Plaintiff's action should be dismissed as “frivolous” pursuant to 28 U.S.C. § 1915(e)(2), such that the dismissal should count as a strike against him under the PLRA's three-strike rule. See generally Neitzke v. Williams, 490 U.S. 319, 325-27 (1989) (noting a complaint is frivolous if it “lacks an arguable basis either in law or in fact” and holding federal courts have the power to dismiss a claim based on “an indisputably meritless legal theory” or claims “whose factual contentions are clearly baseless”). However, § 1915 applies to prisoners who are proceeding in forma pauperis (“IFP”)- that is, without first paying the filing fee-and Plaintiff is not proceeding IFP before this Court.
Defendants removed the action to this Court and paid the necessary filing fees. See ECF No. 1.
In any event, although the undersigned recommends granting Defendants' Motion, Plaintiff's claims are not frivolous. See McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”), abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 207 L.Ed.2d 132 (2020). Indeed, Plaintiff's constitutional claims are rooted in legal theories appropriate for a § 1983 action, and many of the factual allegations are corroborated by Defendants' evidence. Cf. Lee v. Clinton, 209 F.3d 1025, 1025 (7th Cir. 2000) (affirming district court's dismissal of Plaintiff's frivolous complaint, where Plaintiff “filed two insane complaints charging the United States and China with a conspiracy to ‘bio-chemically and bio-technologically infect and invade' various people including [Plaintiff] with a mind reading and mental torture device that [Plaintiff] calls ‘Mind Accessing and Torturing via Remote Energy Transferring (MATRET)'”); see also Neitzke, 490 U.S. at 327 (noting an example of an “indisputably meritless legal theory” is a claim “of infringement of a legal interest which clearly does not exist”). As Plaintiff's claims have an arguable basis in law and fact, this dismissal should not count as a strike.
Second, Defendants suggest that the PLRA bars § 1983 claims where a prisoner does not suffer more than de minimis injury. See ECF No. 20-1 at 21-22 (citing 42 U.S.C. § 1997e(e)). However, § 1997e(e) is a “limitation on recovery.” See 42 U.S.C. § 1997e(e). Thus, “[t]he physical injury requirement is not a bar to filing suit, only a limitation on recovery[, a]nd § 1997e(e) limits a prisoner only from recovering damages that redress, or compensate him for, a mental or emotional injury, when no physical injury is shown.” Hoever v. Marks, 993 F.3d 1353, 1360 (11th Cir. 2021); see also Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (noting “physical injury is merely a predicate for an award of damages for mental or emotional injury, not a filing prerequisite for the federal civil action itself”'); Jones v. Price, 696 F.Supp.2d 618, 624-25 (N.D. W.Va. 2010) (collecting cases and holding that “§ 1997e(e) of the PLRA does not bar recovery of nominal or punitive damages in the absence of a physical injury where an inmate can show an injury of constitutional dimensions”). Accordingly, these arguments under the PLRA do not serve as a basis for dismissal for any of Plaintiff's claims.
B. Failure to show a viable § 1983 claim.
Defendants maintain they are entitled to summary judgment because Plaintiff has not shown essential elements of a § 1983 action for various reasons. See ECF No. 20-1 at 1-15, 1924. Specifically, Defendants argue they are entitled to summary judgment because, inter alia, (1) Eleventh Amendment immunity bars claims against Defendant SCDC and the individual Defendants in their official capacities; (2) Plaintiff has not shown personal involvement as to Defendant Stirling; (3) Plaintiff has not shown a constitutional violation; and (4) they are entitled to qualified immunity. For the following reasons, the Court agrees Plaintiff has failed to establish a viable § 1983 claim against Defendants.
Defendants also contend that Plaintiff's Complaint alleges matters that “do not fall within the scope of 42 U.S.C. § 1983.” See ECF No. 20-1 at 4. Defendants' suggestion is incorrect. Section 1983 is a statutory mechanism that allows a person to sue a state actor for a deprivation of a federally protected right, which includes any a deprivation of a person's rights guaranteed under the U.S. Constitution. Plaintiff alleges that Defendants violated his First, Fourth, Eighth, and Fourteenth Amendment rights, and the claims he is asserting generally fall within the “scope” of § 1983. See Campbell v. Florian, 972 F.3d 385, 392 n.5 (4th Cir. 2020) (noting, under § 1983, a plaintiff must establish three elements: (1) the deprivation of a right secured by the constitution or a federal statute; (2) by a person; (3) acting under color of state law), as amended (Aug. 28, 2020). Thus, any argument that Plaintiff has brought improper claims under § 1983 is without merit.
Because Defendants have successfully raised the affirmative defense of failure to exhaust as to the allegedly improper strip searches in the RHU, the Court only considers the underlying merits of Plaintiff's access to the courts claim.
1. Eleventh Amendment Immunity: SCDC and Official Capacity Claims Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
Here, Defendant SCDC is an agency and an alter ego of the state of South Carolina. See S.C. Code § 24-1-30. As a result, the Eleventh Amendment bars the action against Defendant SCDC. See Will, 491 U.S. at 66.
Additionally, although the Court does not construe Plaintiff's Complaint as suing the remaining Defendants in their official capacities, the undersigned nevertheless agrees they are entitled to summary judgment in their official capacities. At all times relevant to Plaintiff's Complaint, it is undisputed that Defendants were employed by SCDC. Thus, Defendants, in their official capacities, are immune from suit under the Eleventh Amendment and, thus, entitled to summary judgment. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).
Finally, for purposes of § 1983, Defendants are not considered “persons” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991). Accordingly, the undersigned recommends granting summary judgment to SCDC and to the individual Defendants in their official capacities.
2. Personal involvement: Defendant Stirling and Supervisory Liability
To state a § 1983 claim, Plaintiff must demonstrate Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). At the summary judgment stage, Plaintiff must show Defendants' personal involvement in order for liability to attach under § 1983. Williamson v. Stirling, 912 F.3d 154, 171-72 (4th Cir. 2018) (noting a plaintiff must affirmatively show that the official acted personally in violating the plaintiff's constitutional rights and finding certain defendants were entitled to summary judgment because “they lacked sufficient personal involvement in the alleged constitutional deprivations”).
Here, even construing the Complaint liberally, as this Court must, Plaintiff does not allege-or cite to any evidence in the record that could lead a reasonable jury to believe-that Defendant Stirling had any personal involvement in the taking of Plaintiff's alleged legal mail, which is fatal to Plaintiff's § 1983 claim. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)). Accordingly, because Plaintiff fails to point to evidence in the record that supports a threshold essential element of a § 1983 claim, summary judgment is appropriate as to Defendant Stirling. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment).
Indeed, Plaintiff's claims, as pled, do not even meet the pleading requirements of Rule 8. See ECF No. 1-1; Fed.R.Civ.P. 8. The Supreme Court has made clear that a plaintiff “must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff has failed to plead, with any specificity, any personal involvement on the part of Defendant Stirling, and therefore Plaintiff's claims fail.
Moreover, to the extent Plaintiff alleges any Defendants are vicariously liable by virtue of the actions of their subordinates, those claims also fail. Pure supervisory liability will not lie in § 1983 actions. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“The doctrine of respondeat superior has no application under this section.” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977))). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Plaintiff has failed to produce evidence showing any of these required elements. Thus, to the extent Plaintiff's claims rest on holding any Defendants liable in their supervisory capacities, such claims fail.
3. Access to the Courts Claim
Plaintiff generally maintains that the taking of his alleged legal mail was a denial of his access to the courts. ECF No. 1-1 at 9. Plaintiff also appears to allege that Defendant Harouff impermissibly opened his legal mail outside his presence. See ECF No. 1-1 at 7-8. Plaintiff has not shown Defendants violated his constitutional rights.
The Due Process Clause of the Fourteenth Amendment guarantees state inmates their First Amendment right to “adequate, effective, and meaningful” access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977), abrogated by Lewis v. Casey, 518 U.S. 343 (1996). “[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 828.
To raise a claim that he has been unconstitutionally denied access to the courts, Plaintiff cannot rely on conclusory allegations-rather, he must identify with specificity an actual injury resulting from Defendants' conduct. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (citing Strickler v. Waters, 989 F.2d 1375, 1382-84 (4th Cir. 1993)). That is to say, Plaintiff must show that prison officials caused an injury, such as the late filing of a court document or the dismissal of an otherwise meritorious claim. See id.; Lewis, 518 U.S. at 351-54.
Additionally, the First Amendment, as incorporated through the Fourteenth Amendment, prohibits states from “abridging the freedom of speech.” U.S. Const. amend. I. “This proscription extends to both government regulations that directly burden speech and those that have indirect chilling effects.” Haze v. Harrison, 961 F.3d 654, 658 (4th Cir. 2020) (noting that opening “an incarcerated person's legal mail outside of his presence can chill protected speech”).
As a general matter, prisoners have the right to send and receive mail. See Thornburgh v. Abbott, 490 U.S. 401, 404-08 (1989); Pell v. Procunier, 417 U.S. 817, 826-28 (1974). Restrictions on this right are valid if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987); see, e.g., Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (determining a prisoner's First Amendment interest in correspondence does not preclude prison officials from examining mail to ensure that it does not contain contraband; prison officials may open mail from an attorney that is addressed to a petitioner only in the prisoner's presence). Legitimate penological interests include preserving prison security and maintaining order and discipline. See Turner, 482 U.S. at 91-92. Although courts generally accord deference to the dayto-day judgments of prison officials, see id. at 89, when “neither common sense nor evidence demonstrates a reasonable causal nexus between a prison administrator's ends and chosen means, summary judgment for the defendant administrator is inappropriate.” Haze, 961 F.3d at 659 (citation and internal quotation marks omitted).
Here, to the extent Plaintiff alleges a denial of access to the courts, this claim fails. In his Response in Opposition, Plaintiff has not offered evidence showing that the confiscation of the materials on September 29, 2022, resulted in injury, such as the late filing of a court document or the dismissal of an otherwise meritorious claim. See ECF No. 24.
Even considering the arguments in Plaintiff's Sur Reply, ECF No. 26, Plaintiff has still failed to support his claim. Indeed, in his Sur Reply, Plaintiff vaguely alleges that the documents which were confiscated pertain to a lawsuit that “he is filing for being in solitary confinement for [five] years,” and that the documents included “all of [his] exhibits, some of which cannot be recovered.” ECF No. 26 at 1. Plaintiff maintains in a declaration attached to his Sur Reply that this is the injury sustained from Defendants' conduct. ECF No. 26-2 at 2. However, outside of this vague allegation of injury, Plaintiff has not identified a case number or court name, nor has he identified in what county this case is pending (or, if he even filed this case). Furthermore, Plaintiff does not identify or otherwise explain what the exhibits were or why they cannot be recovered. Other than the self-serving declaration attached to his Sur Reply, Plaintiff has not provided any other affidavits, court documents, or other evidence to substantiate his claim that Defendants' confiscation of the materials actually injured him. In other words, Plaintiff has failed to show an actual injury from the alleged conduct, and, therefore, his claims must fail. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (noting, to raise a claim that he has been unconstitutionally denied access to the courts, Plaintiff cannot rely on conclusory allegations-rather, he must identify with specificity an actual injury resulting from Defendants' conduct (citing Strickler, 989 F.2d at 1382-84)); see also Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion).
To the extent Plaintiff argues Defendants impermissibly interfered with his legal mail, Plaintiff has failed to show any interference gave rise to a constitutional violation. As noted above, Ms. Conwell discovered that the materials were not sent by the law firm that appeared on the return address, and that the law firm had no relationship with Plaintiff. ECF No. 20-2 at 3. Because the mail was not from a law firm, it was not “legal mail” as that is classified under SCDC policy; rather, as Defendant Williams averred, it is considered contraband. See ECF No. 20-2 at 2; ECF No. 20-4 at 2. Indeed, both Defendant Harouff and Defendant Williams averred that the materials in the boxes were considered contraband, and that the materials could have been “rejected” at that point because they had a fraudulent address, but the materials were nevertheless sent to the CRC for review. ECF No. 20-4 at 2; ECF No. 20-5 at 3. Ms. Conwell testified that the CRC reviewed the materials, determined the materials were not legal materials, and then sent Plaintiff a notice that the materials had been rejected. ECF No. 20-2 at 3; ECF No. 20-3.
Plaintiff has not provided any evidence to dispute this determination or to support the allegation that this mail was, in fact, legal mail. Thus, any claim against Defendants that they impermissibly interfered with his legal mail in violation of his First Amendment rights fails, and Defendants are entitled to summary judgment. See Kershaw v. Padula, No. CIV.A. 6:10-951MBS, 2011 WL 1750222, at *5 (D.S.C. Apr. 6, 2011) (granting summary judgment where, inter alia, the plaintiff did “not allege[] nor show[] that the defendants opened or otherwise mishandled his legal mail”), report and recommendation adopted, No. CA 6:10-0951-MBS, 2011 WL 1700009 (D.S.C. May 4, 2011).
Furthermore, to the extent it is even alleged, Plaintiff has not shown how the procedures employed at PCI by Defendants in handling the mail (legal or otherwise) violated his First Amendment rights. See Thornburgh, 490 U.S. at 404-08 (noting, as a general matter, prisoners have the right to send and receive mail); Turner, 482 U.S. at 89 (noting restrictions on this right are valid if they are reasonably related to legitimate penological interests); Corey v. Reich, No. CIV.A. 0:02-2801-12, 2004 WL 3090234, at *10 (D.S.C. Mar. 9, 2004) (“[P]rison administrators are allowed to take reasonable precautions to ensure that prison mail is not used for illicit purposes, and Plaintiff has presented no evidence to show that the general procedures employed by the prison here to handle both legal and regular mail as set forth in the Defendants' affidavits and in Plaintiff's own exhibits is improper or violates his constitutional rights.”), aff'd, 103 Fed.Appx. 753 (4th Cir. 2004).
4. Qualified Immunity
Defendants argue they are entitled to qualified immunity from Plaintiff's § 1983 claims.
The Court agrees.
The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendants. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because Defendants did not violate Plaintiff's constitutional rights, they are also shielded from liability by qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 20, be GRANTED.
The parties are directed to the attached Notice for their rights to file objections to this 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 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).