Opinion
C. A. 4:22-2590-MGL-TER
02-07-2023
Willie Frazier, #219272, a/k/a Willie Bernard Frazier, Plaintiff, v. Mr. Williams, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a state prisoner proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
On September 22, 2022, Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and was given an opportunity to file an Amended Complaint. (ECF No. 11). Plaintiff availed himself of the opportunity and filed an Amended Complaint (ECF No. 14); however, deficiencies remain that subject this action to summary dismissal.
Plaintiff sues a prison disciplinary hearing officer as the only defendant for a DHO hearing occurring on 2022. (ECF No. 14). Plaintiff alleges the Fourteenth Amendment has been violated. (ECF No. 14 at 4). Plaintiff was charged with sexual misconduct in 2022 according to public records and Plaintiff's Amended Complaint. (ECF No. 14 at 5). Plaintiff alleges he did not receive enough notice before the hearing. Plaintiff alleges he was given solitary confinement for 60 days and was in solitary confinement for six months. (ECF No. 14 at 6). Plaintiff alleges as injury deprived of written notice of 24 hours. (ECF No. 14 at 6). Plaintiff requests expungement, injunctive relief, and a change in the notice period. (ECF No. 14 at 6).
Plaintiff filed a similar action in 2019 on a different charge; the 2019 action was also summarily dismissed with prejudice finding Plaintiff did not allege a deprivation of a protected liberty interest. Frazier v. Turner, No. 4:19-cv-3574-MGL, 2020 WL 1892069 (D.S.C. Apr. 16, 2020).
Plaintiff has not alleged the deprivation of a protected liberty interest. Constitutional due process rights are only at issue when the prisoner is deprived a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 555-58, (1974); Lennear v. Wilson, No. 18-6403, 2019 WL 3980165, at *5 (4th Cir. Aug. 23, 2019)(published). Public records show Plaintiff was given disciplinary detention for 60 days for the sexual misconduct charge. Where a prisoner has been transferred to detention while serving a sentence, the courts of the Fourth Circuit Court of Appeals look at the following factors in its analysis: “(1) the magnitude of confinement restrictions; (2) whether the administrative segregation is for an indefinite period; and (3) whether assignment to administrative segregation had any collateral consequences on the inmate's sentence.” Incumaa v. Stirling, 791 F.3d 517, 527 (4th Cir. 2015)(prisoner Incumaa was in solitary for 20 years, not 30 days). In a District of South Carolina case, a plaintiff had not plausibly alleged a deprivation of a protected liberty interest where a plaintiff's six additional months in solitary did not create an atypical or significant hardship in relation to the ordinary incidents of prison life. Shaw v. Gillespie, 9:19-cv-01863-RBH, 2019 WL 5257954 (D.S.C. Oct. 17, 2019). Even with Plaintiff's allegations of six additional months of solitary past the disciplinary time given, Plaintiff here has failed to allege facts regarding a deprivation of a protected liberty interest and was already given notice and opportunity to file an Amended Complaint and availed himself of the opportunity. Id. Thus, Plaintiff's action is subject to summary dismissal.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
It is recommended that this action be dismissed without further leave to amend and that the court enter a final decision in this case. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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).