Opinion
C/A 6:21-cv-03478-JD-KFM
02-18-2022
Cederick Wise, Plaintiff, v. Ann Sheppard, Timothy Clark, Brian Kendall, Albert Mackie, NyKeemah Fields, Christopher Poindexter, Mrs. Harley, John Doe 2, Defendants.
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 October 22, 2021 (doc. 1). On December 8, 2021, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 11). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 10-11). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff, a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and located at Broad River Correctional Institution (“Broad River”), brings this action seeking damages from the defendants for alleged constitutional violations which occurred while he was an inmate located at Lieber Correctional Institution (“Lieber”) (doc. 1).
The plaintiff alleges that from May 22, 2020, to November 17, 2020, he was wrongfully placed in the segregated housing unit based on a fabricated charge (id. at 5, 14, 16-17). He contends that Mrs. Harley falsified his custody level, noting in error that he sought protective custody, which caused him to have to remain in segregated housing for six months (id. at 5-6, 16). He further contends that Ms. Fields fabricated an incident report on May 22, 2020, when she indicated that the plaintiff refused to return to general population (id. at 14, 17). He further contends that he was noted as requesting protective custody (although he didn't) and his due process rights were violated because he was not provided a hearing (id. at 15-16, 17-18, 21-22, 23-24). Because he was kept on secured detention, the plaintiff alleges he was denied showers, his heart healthy diet, his eye glasses, sleep, and outdoor recreation (id. at 18, 19-21). He was also denied the ability to keep clean, which is a tenet of his religion (id. at 19). He further alleges that his time on secured detention prevented him from eligibility for a pre-release program that could have shortened his sentence (id. at 18).
The plaintiff alleges that his equal protection rights were violated because he was treated differently than all of the other inmates on disciplinary detention (id. at 16, 18). The plaintiff also contends that remaining on secured detention status was retaliation based upon prior grievances he filed (id. at 13-14, 16-17).
The plaintiff contends that he informed Warden Kendall, A/W Sheppard, A/W Clark, and Mr. Mackie, noting that he should be placed in general population and never requested protective custody (id. at 14-15, 22-23). He seeks supervisory liability against these defendants because they never responded to the plaintiff (id. at 15, 23-24). He also contends that the defendants violated SCDC policy and their oaths of office (id. at 20, 22, 24).
For injuries, the plaintiff alleges trauma, trouble sleeping, weight loss, and mental anguish (id. at 6). For relief, the plaintiff seeks the appointment of an attorney, mental health treatment, various forms of medical treatment, and money damages (id. at 6, 27-28).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in form a 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 complaint 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 complaint is subject to summary dismissal. As an initial matter, the plaintiff references an excessive force incident with Mr. Poindexter in his complaint (doc. 1 at 14); however, it is subject to dismissal in this matter because the plaintiff seeks relief with respect to that incident in another case. See Wise v. Poindexter, et al, C/A No. 6:21-cv-03475 (D.S.C.). Additionally, the plaintiff asserts, in passing, that he was denied his heart healthy diet (doc. 1 at 6, 18, 20); however, it is also subject to dismissal in this matter because the plaintiff seeks relief with respect to his heart healthy diet (while at Lieber) in another case. See Wise v. Kendall, et al., C/A No. 6:21-cv-03477-JD-KFM (D.S.C.). Additionally, of note, the plaintiff is reminded that expletives should not be included in court filings (see doc. 1 at 15).
Due Process Claim
The plaintiff alleges that his Fourteenth Amendment rights were violated by the defendants when - without a hearing - he was falsely imprisoned and placed on security detention “SD” status based upon a false incident report and false report that he requested protective custody (doc. 1 at 5-6, 14, 15-16, 17-18, 21-22, 23-24). 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 custody classification, seeking transfer to a different custody level (or disagreement with his placement on S.D. status), the 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). Likewise, the plaintiff's assertion that his custody status prevented him from eligibility for a pre-release program (which would reduce his sentence) does not establish a liberty interest. It is well-established that “the classifications and work assignments of prisoners . . . are matters of prison administration, within the discretion of the prison administrators . . .” Altizer v. Paderick, 569 F.2d 812, 813 (4th Cir. 1978), cert. denied, 435 U.S. 1009 (1978). 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 complaint does not allege a plausible atypical or significant hardship in being placed in security detention. See Thompson v. Brown, C/A No. 3:11-cv-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (rejecting conditions of confinement claim where the plaintiff claimed “his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days”), Report and Recommendation adopted by 2011 WL 6012550 (D.S.C. Dec. 2, 2011). As such, the plaintiff's due process claim is subject to summary dismissal.
Equal Protection Claim
The plaintiff's equal protection claim is also 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's allegations - that he was treated differently than all other prisoners on disciplinary detention because the defendants had a personal bias against him (doc. 1 at 16) - does not allege how he has been treated differently than other inmates based upon a suspect class, 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, the plaintiff's equal protection claim is subject to summary dismissal.
Supervisory Liability
The plaintiff specifically seeks supervisory liability against the defendants, asserting that they should have responded to his complaints regarding his custody status (doc. 1 at 14-15, 22-24). The plaintiff's supervisory claims, however, are subject to summary dismissal because the doctrines of vicarious liability and respondeat superior are generally not applicable to § 1983 suits. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that “Section 1983 will not support a claim based on a respondeat superior theory of liability” (emphasis in original)). Indeed, to allege a plausible claim requires a showing that the supervisor (1) had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was “so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;” and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013). Here, the plaintiff alleges that he informed the defendants that he was wrongfully placed in SD, but the defendants either failed to respond to his complaints or allegedly wrongfully denied requests made by the plaintiff (doc. 1 at 14-15, 22-24). These claims rely upon the plaintiff's allegation that the defendants wrongfully denied his grievances; however, his claim is subject to dismissal because it is well-settled that an inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Moreover, the plaintiff has not plausibly alleged that the supervisory defendants were on notice of the constitutional violations alleged herein. As such, the plaintiff's complaint fails to state a supervisory liability claim against the defendants. See Ford v. Stirling, C. A. No. 2:17-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017); London v. Maier, C. A. No. 0:10-00434-RBH, 2010 WL 1428832, at *2 (D.S.C. Apr. 7, 2010).
Retaliation Claim
To the extent the plaintiff asserts a retaliation claim against the defendants (doc. 1 at 13-14, 16-17), the plaintiff has failed to state a claim for relief. Where a plaintiff alleges that an act was taken in response to the exercise of a constitutionally protected right, the plaintiff must allege that (1) he engaged in “protected First Amendment activity, (2) [the defendant] took some action that adversely affected [his] First Amendment rights, and (3) there was a causal relationship between [his] protected activity and [the defendant's] conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). Because conduct that “tends to chill the exercise of constitutional rights might not itself deprive such rights, ” a plaintiff can plausibly allege a retaliation claim without alleging an actual deprivation of his First Amendment rights. Constantine, 411 F.3d at 500. With respect to causation, a plaintiff must plausibly allege knowledge by the defendant of a plaintiff's protected activity as well as that the retaliation took place within some “temporal proximity” of that activity. id. at 501; see Germain v. Bishop, C/A No. TDC-15-1421, 2018 WL 1453336, at *14 (D. Md. Mar. 23, 2018). A prisoner must present more than conclusory accusations of retaliation, and must provide facts that show the exercise of his constitutional right was a substantial factor motivating the retaliation. See e.g., Adams, 40 F.3d at 74-75; Cochran v. Morris, 73 F.3d 1310, 1318 (4th Cir. 1996).
Here, even liberally construed, the plaintiff's retaliation claim is unclear. For example, it is not apparent which defendants were involved in or aware of the plaintiff's participation in protected activity or who was involved with the alleged retaliatory acts, and there are no allegations providing a plausible causal link between the protected activity and alleged retaliatory acts. As such, the plaintiff's retaliation claim is also subject to dismissal.
First Amendment Claim
The plaintiff contends that he was prevented from exercising his religion because he could not be clean as required by his religion and the Holy Bible/ Holy Qu'ran (doc. 1 at 19). The First Amendment states that “Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. Known as the free exercise clause, this provision guarantees citizens the right to freely exercise their religious beliefs without government interference. To state a free exercise claim under the First Amendment, a plaintiff must allege facts sufficient to show that he held a sincere religious belief and that the official action or regulation substantially burdened his exercise of that belief. Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989). Here, the plaintiff has failed to allege any facts to show how the defendants burdened the exercise of his religion by limiting his ability to shower. Also, the plaintiff has not plausibly alleged sincere religious beliefs, that any of the defendants were aware that the plaintiff required additional showers due to his religion, or that he even requested additional showers from the defendants. As such, the plaintiff's First Amendment claim is subject to summary dismissal.
Denial of Access to the Courts Claim
The plaintiff also appears to assert that being on S.D. prevented him from access to the courts because he did not have the ability to participate in the grievance process, send mail, or purchase writing supplies from the commissary (doc. 1 at 20-21). Such a claim for denial of access to the courts must be pleaded with specificity. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Moreover, it is well-settled that an inmate's access to and participation in a prison's grievance process is not constitutionally protected. See Taylor v. Lang, 483 Fed.Appx. 855, 858 (4th Cir. 2012); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). In any event, to maintain a valid constitutional claim for denial of access to the courts, a prisoner must show actual injury. Cochran, 73 F.3d at 1317; see Lewi s, 518 U.S. at 349. The plaintiff has not plausibly alleged actual injury. Indeed, the filings in this case-and in eight others filed within this district just in the past year-belie the plaintiff's claim that he lacks access to the court. See Wise v. Nelson, et al., C/A No. 6:22-cv-00059-JD-KFM (D.S.C.) (pending); Wise v. Poindexter, et al., C/A No. 6:21-cv-03477-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-03475 (D.S.C.) (pending); Wise v. Jefferson, et al., C/A No. 6:21-cv-02713-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-02590-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-02308-JD-KFM (D.S.C.) (pending); Wise v. Kendall, et al., C/A No. 6:21-cv-00164-JD, 2021 WL 3410057 (D.S.C. Aug. 4, 2021) (dismissed); Wise v. Guest, et al., C/A No. 6:20-cv-04161-JD, at doc. 42 (D.S.C. Apr. 8, 2021) (dismissed). Accordingly, in light of the foregoing, the plaintiff's denial of access to the courts claim is subject to dismissal.
Oath of Office Claims
To the extent that the plaintiff purports to bring any independent claims for “violation of oath of office” by the defendants (see doc. 1 at 22, 24), these are not cognizable, independent, claims under either state or federal law. See Alford v. Mecklenburg Cnty. Clerk of Superior C t., C/A No. 3:19-cv-00156-MOC-DSC, 2019 WL 2881556, at *6 (W.D. N.C. July 2, 2019).
Violation of SCDC Policy Claims
Finally, to the extent the plaintiff asserts that the defendants have violated his constitutional rights by violating various SCDC policies (doc. 1 at 20, 22, 24), he has not alleged a plausible claim because a violation of an SCDC policy or rule, on its own, does not constitute a violation of the plaintiff's constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); Johnson v. S.C . Dep't of Corrs., C/A No. 3:06-cv-02062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (The plaintiff's allegation that defendants did not “follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”). As such, the plaintiff's claims regarding alleged violations of SCDC policies are subject to summary dismissal.
RECOMMENDATION
By order issued December 8, 2021, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely 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 (doc. 11). The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court 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, directing the district court 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.