Opinion
Civil Action 2:24-00029
07-17-2024
RICKY VINCENT PENDLETON, Plaintiff, v. DONNIE AMES, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
Omar J. Aboulhosn United States Magistrate Judge
On January 12, 2024, Plaintiff, acting pro se, filed his Application to Proceed Without Prepayment of Fees and Costs, his Complaint claiming entitlement to relief pursuant to 42 U.S.C. § 1983, and Memorandum in Support. (Document Nos. 1 - 3.) In his Complaint, Plaintiff names the following as Defendants: (1) Donnie Ames, Superintendent of Mt. Olive Correctional Complex (“MOCC”); and (2) William K. Marshall, III, Commissioner of the West Virginia Division of Corrections and Rehabilitation (“WVDOC”). (Document Nos. 2 and 3.) Plaintiff alleges that his due process rights were violated during disciplinary proceedings at MOCC when he did not “receive a timely notice of a Disciplinary Incident Report (Docket No. 272077).” (Id.) Plaintiff explains that on October 7, 2023, he was charged with “a class one Disciplinary Incident Report Docket No. 272077 for allegedly violating a prison rule.” (Id., p. 8.) Plaintiff complains that he was not served notice of the Disciplinary Incident Report until October 19, 2023, which was “twelve (12) days too late.” (Id.) Plaintiff asserts that WVDOC Policy Directive 325.00, Sections 6.04(d), 6.04(f), 6.06(d), 6.07(c), and 6.07(d) require that notice of an incident report be served within seventy-two (72) hours. (Id.) Plaintiff complains that the “defective disciplinary Incident Report Docket No. 272077 was used against [him] as evidence at [his] disciplinary hearing.” (Id.) Since the Disciplinary Incident Report was “served beyond the seventy-two (72) hours,” Plaintiff argues that the Disciplinary Incident Report was “null and void” and used in “violation of the fruit of the Poisonous Tree Doctrine.” (Id.) Plaintiff, therefore, contends that his conviction on the Disciplinary Incident Report “warrants reversal.” (Id.) As a result of his conviction on the Disciplinary Incident Report, Plaintiff states that he was “sanctioned to sixty (60) days punitive segregation and then placed on administrative segregation/Quality of Life Program (a year long program).” (Id.) As relief, Plaintiff requests the following:
Because Plaintiff is acting pro se, the documents which he has filed in this case are held to a less stringent standard than if they were prepared by a lawyer and therefore, they are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
By Disciplinary Incident Report dated October 7, 2023, Plaintiff was charged with Compromising an Employee in violation of 1.25. (Document No. 2-1, p. 8 - 9.) In support, Candy L. Miller stated as follows:
On Saturday, 07 October 2023, while working my assigned post, Kitchen, at Mount Olive Correctional Complex and Jail, I, Aramark Supervisor Candy Miller did have the following incident occur. At approximately 0850 hours, while I was closing MDR side two serving window I was approached by Inmate Pendleton, Ricky OID# 3572914 and did notice he had two fingers on the serving line. After noticing I/M Pendleton standing there he did state “two that's what cooler we need to go into for me to give you a kiss.” At that time, I did walk to the office while inmate Pendleton was motioning for me to proceed to Cooler #2. Due to inmate Pendleton, Ricky OID# 3572914 actions and statements, I am charging him with policy directive 325.00 rule # 1.25 Compromising and Employee.
[A]n expungement of the Disciplinary Incident Report Docket No. 272077; back wages of lost monies after being wrongfully terminated from the prison job assignment; to be released out of administrative segregation, Quality of Life Program immediately; to be reimbursed for any destroyed or lost property from being in this situation; to be reinstated at Ashland University to further achieve his degree; and any other relief that this Court deems appropriate effective immediately.(Id.)
As Exhibits, Plaintiff attaches the following: (1) A copy of Superintendent Ames' Memorandum dated November 15, 2023, denying Plaintiff's appeal of the Correctional Hearing Officer's findings and deposition regarding Disciplinary Incident Report, Docket No. 272007 (Document No. 2-2, p. 2); (2) A copy of Commissioner Marshall's “Discipline Appeal Decision” dated November 30, 2023 (Id., p. 4); (3) A copy of Plaintiff's appeal to Commissioner Marshall regarding his placement in administrative segregation and the Quality of Life Program (Id., p. 6); (4) A copy of the Disciplinary Incident Report, Docket No. 272007, dated October 7, 2023, charging Plaintiff with Compromising an Employee in violation of Policy Directive 3.25, Section 1.25 (Id., pp. 8 - 9); (5) A copy of the WVDOC's Policy Directive 3.25 regarding the “Discipline of Inmates” (Id., pp. 11 - 47); and (6) A copy of Plaintiff's “Written Work Assignment Agreement” dated September 14, 2022 (Id., p. 48).
On March 29, 2024, Plaintiff filed a letter-form Motion to Withdraw his Application to Proceed Without Prepayment of Fees and Costs. (Document No. 10.) In support, Plaintiff states that he is enclosing a money order for $402.10 for the filing fee. (Id.) By letter dated April 1, 2024, the Clerk's Office notified Plaintiff that a money order was not enclosed with his above letter-form Motion. (Document No. 11.) On April 2, 2024, Plaintiff filed a “Motion to Withdraw Application to Proceed Without Prepayment of Fees and Costs.” (Document No. 12.) In support, Plaintiff again states that he is going the pay the $402 filing fee. (Id.) The Court received payment of the filing fee on the same day. (Document No. 13.)
By separate Order entered this day, the undersigned has denied Plaintiff's Application to Proceed Without Prepayment of Fees and Costs (Document No. 1) based upon Plaintiff's payment of the filing fee and denied as moot Motions to Withdraw Application to Proceed Without Prepayment of Fees and Costs (Document Nos. 10 and 12).
THE STANDARD
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to screen each case in which a plaintiff seeks to proceed in forma pauperis, and must dismiss the case if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. This screening is done prior to consideration of an Application to Proceed Without Prepayment of Fees and Costs, and notwithstanding the payment of any filing fee. See Randolph v. Campbell, 25 Fed.Appx. 261 (6th Cir. 2001)(“Screening procedures established by the Prison Litigation Reform Act apply whether plaintiff has paid the entire filing fee or is proceeding in forma pauperis”). On screening, the Court must recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous” complaint is one which is based upon an indisputably meritless legal theory. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A “frivolous” claim lacks “an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id., 490 U.S. at 327 - 328, 109 S.Ct. at 1833. A complaint therefore fails to state a claim upon which relief can be granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. With these standards in mind, the Court will assess Plaintiff's allegations in view of applicable law.
This Court is required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal construction, however, “does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the “courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va. Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015).
DISCUSSION
“[F]ederal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). Title 42 U.S.C. § 1983 provides a remedy for violations of all “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” Thus, Section 1983 provides a “broad remedy for violations of federally protected civil rights.” Monell v. Dep't of Social Services, 436 U.S. 658, 685, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Generally speaking, to state and prevail upon a claim under 42 U.S.C. § 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived her of an alleged right, privilege or immunity protected by the Constitution or laws of the United States.
In his Complaint, Plaintiff alleges a violation of his constitutional rights pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff alleges that Defendants Ames and Marshall violated his due process rights under the Fourteenth Amendment. Plaintiff alleges his due process rights were violated because he did not receive timely notice of his Disciplinary Incident Report pursuant to the WVDOC's Policy Directive. Plaintiff asserts that WVDOC Policy Directive 325.00, Sections 6.04(d), 6.04(f), 6.06(d), 6.07(c), and 6.07(d) require that notice of an incident report be served within seventy-two (72) hours. Plaintiff states that he received notice of his Disciplinary Incident Report “twelve (12) days too late.” Plaintiff concludes that he should not have been convicted on the Disciplinary Incident Report because the late service of the Disciplinary Incident Report rendered it “null and void.” As a result of his conviction on the Disciplinary Incident Report, Plaintiff complains he was “sanctioned to sixty (60) days punitive segregation and then placed on administrative segregation/Quality of Life Program (a year long program).” Plaintiff, however, does not allege that he lost any good time credit as a result of his disciplinary conviction.
In addition, the undersigned further finds that the dismissal of a defendant is appropriate where the defendant's sole involvement in an action is related to the administrative remedy process. See Fellove v. Heady, 2008 WL 196420 *4 (N.D.W.Va. Jan. 22, 2008)(stating that “to the extent that the plaintiff may be asserting that these defendants were deliberately indifferent to his needs by denying his administrative grievances, that claim is also without merit as this is not the type of personal involvement required to state Bivens claim”); Mabry v. Ramirez, 2007 WL 4190398 *6 (N.D.W.Va. Nov. 21, 2007)(holding that “denying a prisoner's institutional grievance is not the type of personal involvement required to state a Bivens claim for deliberate indifference to serious medical needs”); Paige v. Kupec, 2003 WL 23274357 *1 (D.Md. March 31, 2003), aff'd, 70 Fed.Appx. 147 (4th Cir. 2003)(finding that the warden should be dismissed where the only claim against the warden concerned his dismissal of plaintiff's administrative remedy). Plaintiff's claims against Defendant Ames and Marshall are based solely upon Defendants Ames and Marshall's involvement in the administrative remedy process.
If Plaintiff's disciplinary proceedings would have involved the loss of good time credit, Plaintiff would have been entitled to the procedures set forth in Wolff. In Wolff, however, the Supreme Court stated that “the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have lawfully committed. Wolff, 418 U.S. at 556, 94 S.Ct. at 2975. The Supreme Court explained that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Id. To the extent Plaintiff is claiming his disciplinary conviction resulted in the loss of good time credit and resulted in a violation in his due process rights, such a claim must first be pursued pursuant to 28 U.S.C. § 2241. A Section 1983 action seeking monetary damages for Plaintiff's allegedly invalid disciplinary conviction would be precluded by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) unless Plaintiff successfully challenged his disciplinary conviction in a habeas proceeding.
Although the Fourteenth Amendment of the United States Constitution prohibits a State from depriving “any person of life, liberty, or property, without due process of law,” the range of protected liberty interests for defendants convicted and confined in prison are significantly reduced for the period of incarceration. See U.S. Const. amend. XIV, § 1; Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991). The fact of conviction and imprisonment implies the defendant's transfer of his liberty to prison officials, who in their broad discretion, administer his sentence. Gaston, 946 F.2d at 343. Nevertheless, “confinement to prison does not strip a prisoner of all liberty interests.” Id. (emphasis added) To determine whether an inmate retains a certain liberty interest, the Court must look to the nature of the claimed interest and determine whether the Due Process Clause applies. See Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). An inmate holds a protectable right in those interests to which he has a legitimate claim of entitlement. Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979)(quoting Roth, 408 U.S. at 577, 92 S.Ct. 2709). In Gaston, the Fourth Circuit determined that an inmate possesses a claim of entitlement in those interests “which were not taken away expressly or by implication, in the original sentence to confinement.” Id. at 343. The Supreme Court held in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), that in order to show the deprivation of a liberty interest protected by the Due Process Clause, an inmate must show either that: (1) the conditions of his detention exceeded the sentence imposed in such an unexpected manner as to give rise to protection by the Due Process Clause or (2) the confinement creates an atypical or significant hardship in relation to the ordinary incidents of prison life. Id., 515 U.S. at 484, 115 S.Ct. at 2300 (citations omitted); see McNeill v. Currie, 84 Fed.Appx. 276, 277 (4th Cir. 2003); also see Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985)(When a disciplinary sanction impacts the duration of a federal inmate's sentence, a protected liberty interest in the inmate's release from confinement is implicated, and minimal procedural guarantees are recognized.); Smith v. Deemer, 641 Fed.Appx. 865,868 (11th Cir. 2016)(citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (Wolff sets forth procedures that must accompany disciplinary hearings when there is a loss of good time credit. When a prisoner has not lost any good-time credit, Wolff does not apply); Ordaz v. Lynaugh, 20 F.3d 1171 (5th Cir. 1994)(“Wof. .. does not determine the procedural requirements for disciplinary action such as restriction of commissary privileges.”); Annabel v. Frost, 2015 WL 1322306, * 8 (W.D.Ky. June 14, 2016)(“A prison inmate has a liberty interest in disciplinary proceedings if he or she faces a sanction that imposes an “atypical and significant hardship on the inmate in relation to the ordinary incident of prison life.”). Absent allegations indicating that there has been a restraint upon the inmate's freedom which imposes “an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” the inmate's claims have no merit. Id.
First, there is no allegation or indication that the conditions of Plaintiff's detention exceeded the sentence imposed in such an unexpected manner as to give rise to protection by the Due Process Clause. Next, the undersigned considers whether Plaintiff has established a protected liberty interest. “Without a protected liberty or property interest, there can be no federal procedural due process claim.” Experimental Holding, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007)(citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); also see Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005)(“We need reach the question of what process is due only if the inmate establishes a constitutionally protected liberty interest”). In the instant case, Plaintiff did not lose any good time credit as a result of his disciplinary charges. Plaintiff, however, alleges that he had a liberty interest concerning his disciplinary hearing based upon Policy Directive 325.00. Specifically, Plaintiff argues that he was entitled to receive notice of the Disciplinary Incident Report within seventy-two (72) hours. Prison staff's failure to follow their own policies or procedures, standing alone, does not amount to a constitutional violation. Riccio v. County of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990)(If the state law grants more procedural rights than the Constitution requires, a State's failure to abide by that law is not a federal due process issue); Donohue v. Diggs, 2011 WL 795889, * 3 (W.D.Va. March 1, 2011)(“[A] state's failure to abide by its own procedural regulations is not a federal due process issue and is, therefore, not actionable under § 1983.”). Accordingly, the undersigned finds that Plaintiff's reliance upon Policy Directive 325.00 to establish a protected liberty interest is without merit.
When a disciplinary sanction impacts the duration of a federal inmate's sentence, a protected liberty interest in the inmate's release from confinement is implicated, and minimal procedural guarantees are recognized. Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985). The Supreme Court stated what procedure is required at a minimum in Wolff, supra. An inmate subject to administrative disciplinary sanctions impacting the duration of his sentence is entitled (1) to receive advance notice of charges no less than 24 hours before the disciplinary hearing, (2) to present evidence and witnesses in his defense as long as it does not jeopardize institutional safety or correctional goals, and (3) to receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Id., 418 U.S. at 563 - 569, 94 S.Ct. at 2978 - 2981. Even assuming Plaintiff lost good time credit, there is no allegation or indication that Plaintiff did not receive all of the minimum due process safeguards set forth in Wolff during his disciplinary process. Although Plaintiff complains about the timing of his notice of the charges, the record clearly reveals that Plaintiff received written notice (October 19, 2023) of the charges at least 24 hours before the Disciplinary Hearing (October 25, 2023). (Document No. 2-1, pp. 8 - 9.)
Citing WVDOC Policy Directive 325.00, Sections 6.04(d), 6.04(f), 6.06(d), 6.07(c), and 6.07(d), Plaintiff argues that the Disciplinary Incident Report was untimely served upon him. First, Section 6.04 provides that an inmate may be detained prior to service of the Disciplinary Incident Report if such detention “is necessary to conduct an investigation, ensure immediate control and supervision, protect potential victims, ensure witnesses against intimidation, ensure facility security or public safety, or causes of similar nature or gravity.” Policy Directive 325.00, Sections 6.04(a) and (b). If an inmate is placed in detention, Section 6.04(f) provides that the Disciplinary Incident Report must be served upon the inmate within seventy-two (72) hours. Id., Sections 6.04(d) and (f). In the instant case, however, there is no allegation or indication that Plaintiff was placed in such detention. Second, Section 6.06 provides that the employee who places an inmate in detention must submit a Detention Report to the Superintendent “or notify and receive verbal approval within twenty-four (24) hours after the inmate is detained and receive written approval within seventy-two (72) hours after the inmate is detained.” Policy Directive 325.00, Sections 6.06(b). The foregoing, however, is irrelevant to the service of the Disciplinary Incident Report upon the inmate. Third, Section 6.07(c) provides that the disciplinary hearing “shall be scheduled no sooner than twenty-four (24) hours, excluding weekends and holidays, after serving the Disciplinary Incident Report” unless waived by the inmate. Policy Directive 325.00, Sections 6.07(c). Fourth, Section 6.07(d) provides that the disciplinary hearing “should be scheduled no later than seven (7) days, excluding weekends and holidays, after the accused inmate has been served with the Disciplinary Incident Report.” Id., Sections 6.07(d). The record, however, reveals that Plaintiff was served with the Disciplinary Incident Report (October 19, 2023) at least 24 hours prior to his disciplinary hearing (October 25, 2023) and that the disciplinary hearing (October 25, 2023) occurred within seven days after Plaintiff was served with the Disciplinary Incident Report (October 19, 2023). Excluding the weekend, Plaintiff's disciplinary hearing occurred four (4) days after service of the Disciplinary Incident Report. Thus, there was no violation of WVDOC Policy Directive 325.00.
Even where a state statute or policy may create a liberty interest, the denial of such an interest must “impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” for the liberty interest to warrant the protection of the Due Process Clause. See Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir. 2015)(citing Sandin, 515 U.S. 481-82, 115 S.Ct. 2293).
Second, the undersigned will consider whether Plaintiff can establish that the conditions of confinement constitute atypical and significant hardship in relation to the ordinary incidents of prison life. A “fact specific” comparative exercise is required when determining whether confinement conditions are atypical and substantially harsh “in relation to the ordinarily incidents of prison life.” Id. In Prieto, the Fourth Circuit determined that the Sandin standard contains two parts: (1) First, the Court must determine what constitutes the “ordinary incidents of prison life” for this particular inmate; and (2) Second, with that baseline established, the Court must determine whether the prison conditions impose atypical and substantial hardship in relation to that norm. Prieto, 780 F.3d at 253-54. Although general prison population is not always the basis for comparison, “general population is the baseline for atypicality for inmates who are sentenced to confinement in the general prison population and have been transferred to security detention while serving their sentence.” Incumaa, 791 F.3d at 527(“[T]he ‘baseline for atypicality' may shift depending on the ‘prisoner's conviction and sentence.'”)(citing Prieto, 780 F.3d at 253).
In the instant case, the undersigned finds that general population is the appropriate baseline as Plaintiff was in general population before being placed in punitive and administrative segregation. Using general population as the baseline, the undersigned finds that Plaintiff fails to allege conditions of confinement in segregation that satisfy the standard set forth in Sandin. In Beverati, the Fourth Circuit determined that the following conditions in administrative segregation did not constitute atypical and significant hardship in comparison to general population:
...cells were infested with vermin; were smeared with human feces and urine; and were flooded with water from a leak in the toilet on the floor above. And, [the inmates] assert, they were forced to use their clothing and shampoo to clean the cells. In addition, Inmates maintain that their cells were unbearably hot and that the food they received was cold. Furthermore, Van Aelst submitted an affidavit indicating that those assigned to administrative segregation did not receive clean clothing, linen, or bedding as often as required by the regulations governing administrative segregation; that they were permitted to leave their cells three to four times per week, rather than seven, and that no outside recreation was permitted; that there were no educational or religious services available; and that food was served in considerably smaller portions.Beverati, 120 F.3d at 502. In contrast, the Supreme Court in Wilkinson determined that the following conditions at a supermax facility imposed an atypical and significant hardship under any plausible baseline:
. . . almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context.Wilkinson, 545 U.S. at 223-24, 125 S.Ct. at 2394-95.
Although Plaintiff appears to challenge the appropriateness for his placement in segregation, he cannot establish that specific conditions of his confinement in segregation were atypical and created a significant hardship as compared to ordinary prison life in general population. To the extent Plaintiff states that his mere placement in segregation constitutes an atypical and significant hardship, such is insufficient. Segregation, in and of itself, does not deprive an inmate of a liberty interest or create an atypical hardship. See Beverati, 120 F.3d at 502. The length of time that segregation is imposed is a factor which Courts must consider in determining whether conditions are significant and atypical. See Wilkinson, 545 U.S. at 224, 125 S.Ct. at 239495; Tellier v. Fields, 280 F.3d 69, 80 (2nd Cir. 2000)(finding an inmate's confinement in segregation for 514 days without having a hearing resulted in confinement that was atypical and significant). Plaintiff's segregation was not for an indefinite period and there is no allegation his confinement in segregation had a collateral consequence on his sentence. Plaintiff alleges he was placed in punitive segregation for 60 days and administrative segregation (Quality of Life Program) for one year, which is not such a prolonged period as to constitute a significant and atypical hardship. See Wilkerson v. Goodwin, 774 F.3d 845, 855 (5th Cir. 2014)(citing cases)(“[T]he duration in segregated confinement that courts have found does not give rise to a liberty interest ranges up to two and one-half years.”). The mere fact that Plaintiff experienced more restrictive conditions in administrative segregation than inmates in general population, does not render his confinement as an atypical and significant hardship. “General population inmates can also expect cell and strip searches, temporary housing in segregation under similar restrictions, and limited access to property and the public.” Hubbert v. Washington, 2017 WL 1091943, * 6 (W.D.Va. March 22, 2017); Patterson v. Gladhill, 2015 WL 1186575, fn. 14 (D.Md. March 13, 2015)(“The strip searches which Plaintiff complains of do not rise to a constitutional violation as they are not an atypical and significant hardship even if the court were to assume that Plaintiff was in the view of female officers during the alleged searches.”) Additionally, nothing in the record indicates that Plaintiff's conditions of confinement in segregation were atypical or resulted in a significant hardship. To the extent that Plaintiff alleges a liberty interest in retaining all privileges, the undersigned finds that Plaintiff's claim is without merit. The denial of privileges and confinement in segregation are matters clearly contemplated by Plaintiff's original sentence. See Gaston, 946 F.2d at 343 (To safely and efficiently run the prison, prison officials maintain broad discretion over an inmate's “location, variations of daily routines, changes in conditions of confinement (including administrative segregation), and the denial of privileges”); Hatch v. District of Columbia, 184 F.3d. 846, 855 (D.C. Cir. 1999)(stating that “the transfer of an inmate to less amenable and more restrictive quarter for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence”); and Gholson v. Murry, 953 F.Supp. 709, 716 (E.D.Va. 1997)(finding that the denial of work opportunities and certain education programs did not impose an atypical and significant hardship on inmates placed in segregation in relation to the ordinary incidents of prison life).
Finally, the Due Process Clause does not give an inmate a liberty interest in a certain prison classification. See Hewitt v. Helms, 459 U.S. 460, 477 n. 9, 103 S.Ct. 864, 874 n. 9, 74 L.Ed.2d 675 (1983)(stating that the “transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence”); Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994), citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)(the federal Constitution “vests no liberty interest in inmates in retaining or receiving any particular security or custody status as long as challenged conditions or degree of confinement is within sentence imposed and is not otherwise violative of Constitution”); Altizer v. Paderick, 569 F.2d 812 (4th Cir. 1978)(holding that federal due process constraints are not implicated because the classification of a State prison inmate is a matter of State prison officials' discretion); and Meachum v. Farno, 427 U.S. 215, 225 (1976)(stating that the transfer of an inmate to a higher security facility does not violate a liberty interest). Since the facts underlying Plaintiff's Complaint are insufficient to establish a protected liberty interest under the Due Process Clause, the undersigned finds it unnecessary to consider what process was due to Plaintiff. See Wilkinson, 545 U.S. at 221, 125 S.Ct. at 2393(“We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest . . .”); Petway v. Lappin, 2008 WL 629998 (N.D.W.Va. March 5, 2008)(finding that plaintiff's “due process complaints concerning either the misapplication of policy and procedures, or a lack of official rules and regulations, must fail” because the inmate had no protected liberty interest in avoiding segregated confinement”). Accordingly, the undersigned respectfully recommends that Plaintiff's Complaint be dismissed for failure to state a cognizable claim.
PROPOSAL AND RECOMMENDATION
The undersigned therefore respectfully PROPOSES that the District Court confirm and accept the foregoing findings and RECOMMENDS that the District Court DISMISS Plaintiff's Complaint (Document No. 2), and remove this matter from the Court's docket.
The Plaintiff is hereby notified that this “Proposed Findings and Recommendation” is hereby FILED, and a copy will be submitted to the Honorable United States District Judge Irene C. Berger. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the Plaintiff shall have fourteen (14) days (filing of objections) and three (3) days (if received by mail) from the date of filing of this Findings and Recommendation within which to file with the Clerk of this Court specific written objections identifying the portions of the Findings and Recommendation to which objection is made and the basis of such objection. Extension of this time period may be granted for good cause.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Copies of such objections shall be served on opposing parties, District Judge Berger and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Plaintiff, who is acting pro se.