Opinion
C. A. 6:21-cv-02590-JD-KFM
12-17-2021
Cederick Wise, Plaintiff, v. Brian Kendall, Chree Shear, Francis Blackman, John Doe One, Defendants.[1]
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on August 12, 2021 (doc. 1). By Order filed November 10, 2021, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 20). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 8-9). On November 29, 2021, the plaintiff's amended complaint was entered on the docket (doc. 22). Because the plaintiff's amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
ALLEGATIONS
The plaintiff, a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action alleging that the defendants have violated his constitutional rights (doc. 22). The plaintiff alleges violations of his due process and equal protection rights (id. at 4). He contends that after he received a disciplinary charge for possession of a cell phone, the defendants withheld exculpatory evidence from him that would have proven him innocent (id. at 4, 5-6). Due to the defendants' actions, the plaintiff received a disciplinary conviction for possession of a cell phone, even though the cell phone belonged to his cell mate (id.). For injuries, the plaintiff alleges psychological harm and mental anguish (id. at 6). For relief, the plaintiff seeks money damages (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This case is filed pursuant to 42 U.S.C. § 1983, which “‘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 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). 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).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, the plaintiff's amended complaint contains no personal allegations of wrongdoing by the defendants - instead they are only named in the caption and identified as defendants (see doc. 22). Although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than general and conclusory statements to allege a plausible claim for relief. Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995); see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal involvement”). As such, the amended complaint fails to state a claim on which relief may be granted against the individual defendants and they are entitled to summary dismissal. Nevertheless, the undersigned will also address the plaintiff's asserted claims.
Due Process Claim
The plaintiff alleges that his rights were violated by the defendants when he was denied access to exculpatory evidence from a confiscated cell phone in relation to a disciplinary charge for possession of a cell phone (doc. 22 at 4, 5-6). As an initial matter, prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due to a defendant in those types of proceedings does not apply in prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Nevertheless, to state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process. See Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). First, to the extent the plaintiff seeks damages based upon his disciplinary conviction, his claim is subject to dismissal because prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (finding no constitutional right under the due process clause to a particular security classification or prison placement), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Moreover, the plaintiff has not alleged a liberty interest with respect to his disciplinary conviction - as his disciplinary sentence did not include the loss of good time - only the loss of telephone, canteen, visitation, and television privileges (see doc. 22). See South Carolina Department of Corrections Incarcerated Inmate Search, https://public.doc.state.sc.us/scdc-public/ (enter the plaintiff's first and last name) (last visited December 16, 2021); see also Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 461 (1989) (finding no liberty interest in canteen, telephone, or visitation privileges); United States v. Alkire, C/A No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr. 10, 1996) (no constitutional right to the use of a telephone while in prison); Conn v. Stolle, et al., C/A No. 1:11-cv-00758-CMH-TCB, 2011 WL 3321136, at *3 (E.D. Va. July 29, 2011) (finding no constitutional right to watch television and recognizing that prisoners do not have a direct constitutional right to visitation). Indeed, as noted by the Supreme Court, a change in a prisoner's conditions of confinement only gives rise to a federally-protected liberty interest if it “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483, 485 (finding no liberty interest when inmate placed in segregated confinement). Here, the plaintiff's vague and conclusory allegations that he endured a significant hardship - absent factual allegations describing the hardship - do not state a claim for relief.
Moreover, even presuming the plaintiff had asserted a protected liberty interest, his claim still fails. It appears that the basis of the plaintiff's due process claim is that he was entitled to the disclosure of purported exculpatory evidence as part of his disciplinary hearing for possession of a cell phone, based upon a case from the Seventh Circuit Court of Appeals, Chavis v. Rowe, 643 F.2d 1281 (7th Cir. 1981) (see doc. 22). Although Chavis applies a Brady-type rule to prison disciplinary hearings, the Fourth Circuit Court of Appeals has held in an unpublished case that Brady is inapplicable to disciplinary convictions. See Wise v. Carpenter, 838 F.2d 469, 1988 WL 4574 (4th Cir. 1988) (unpublished table decision). As such, the plaintiff's due process claim fails to the extent he relies on Chavis requiring the extension of a Brady-type rule to disciplinary proceedings. Additionally, the plaintiff has not plausibly alleged that the cell phone contained exculpatory material. The plaintiff's conviction was for possession of a cell phone found in his cell - not for using the cell phone - meaning that the use of the phone does not necessarily disprove his constructive possession of the phone. Moreover, the plaintiff has not alleged a constitutionally cognizable injury - alleging mental anguish. See Williams v. Pruitt, C/A No. 8:13-cv-01812-JMC, 2013 WL 4500436, at *2 n.2 (D.S.C. Aug. 19, 2013) (finding that there is no federal constitutional right to be free from emotional distress, mental anguish, or psychological stress) (citing Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985), cert denied, 480 U.S. 916 (1987); Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989)). As such, the plaintiff's due process claim is subject to summary dismissal.
Equal Protection Claim
To the extent the plaintiff intended to raise an equal protection claim in his amended complaint by mentioning his equal protection rights, his claim is subject to summary dismissal. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Fourth Circuit has held that
[t]o succeed on an equal protection claim, a 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. Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) (internal citations omitted). Here, the plaintiff has not alleged how his equal protection rights were violated - and to the extent he relies on being treated differently than other prisoners, such an allegation does not state a claim for relief - as being a prisoner is not a suspect classification. See Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013) (noting that circuit precedent clearly holds “that prisoners are not a ‘suspect class'”). As such, to the extent the plaintiff's passing reference to an equal protection violation alleges a claim, such claim is subject to summary dismissal.
Abandoned Claims
It appears that the plaintiff has abandoned his supervisory liability, retaliation, oath of office, and SCDC policy violation claims (see doc. 22). The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 20 at 8-9 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims. To the extent the plaintiff did not intend to abandon them, for the reasons set forth in the court's prior order, these claims would still be subject to summary dismissal (see doc. 20 at 6-8).
RECOMMENDATION
By order issued November 10, 2021, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated November 10, 2021 (doc. 20). Therefore, the undersigned recommends that the district court decline to give the plaintiff further leave to amend his complaint and dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
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 committees 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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).