Opinion
C. A. 5:23-4138-TMC-KDW
11-21-2024
Branson Thompson, a/k/a Branson Jamal Thompson, Plaintiff, v. Warden John Palmer; D.H.O. Officer Mr. Williams; and Substitute Counsel Ms. McCroy, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
Branson Thompson (“Plaintiff”), proceeding pro se, is an inmate incarcerated in McCormick Correctional Institution in the South Carolina Department of Corrections (“SCDC”). He filed this Complaint alleging a violation of his civil rights by Warden John Palmer (“Palmer”), Disciplinary Hearing Officer Mr. Williams (“Williams”), and Substitute Counsel Ms. McCroy (“McCroy”). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Amended Complaint in this case.
I. Factual and Procedural Background
On August 23, 2023, the court issued an order notifying Plaintiff that his Complaint was subject to summary dismissal because he failed to allege sufficient factual allegations to state a claim. ECF No. 11. The order further advised Plaintiff he had until September 6, 2023, to file an amended complaint or otherwise cure the identified deficiencies in his pleadings. Id. Plaintiff filed an Amended Complaint on September 11, 2023. ECF No. 15.
Plaintiff alleges his due process rights were violated by Defendants' actions leading up to, and during, a January 12, 2023, disciplinary hearing on Plaintiff's smuggling contraband and escape charges. ECF No. 15-1 at 1, 10. Plaintiff claims Williams was not fair and impartial, and his actions during Plaintiff's disciplinary hearing violated SCDC policy. Id. at 1-2. Plaintiff states Sergeant Roberts was the reporting officer but neither he nor anyone else was called as a witness at his disciplinary hearing. Id. at 2. Plaintiff alleges Williams checked the section for witnesses and evidence on a form indicating Plaintiff called witnesses and had seen evidence during the hearing. Id. Plaintiff claims the witnesses he requested did not appear at the hearing, nor was he given the right to review documentary evidence and video footage of the incident. Id. at 2, 11. Plaintiff contends Williams failed to properly complete the form “explaining section of guilt,” as Williams did not explain why Plaintiff was denied the right to present evidence and to question witnesses. Id. at 10. Plaintiff claims Williams also fraudulently stated Plaintiff admitted his guilt, and that testimony was heard from witnesses. Id. Plaintiff says he was found guilty and placed in lock up, and this resulted in his sentencing date being pushed back. Id. at 3.
Plaintiff contends McCroy violated constitutional guidelines and deviated from SCDC policies and procedures on disciplinary hearings. Id. at 3, 8. Plaintiff says McCroy was biased and negligent in representing him at the hearing. Id. at 3. Plaintiff alleges McCroy knew Williams was not following SCDC policy, and she was aware that Plaintiff's reading level did not allow Plaintiff to point out Williams' failures; however, McCroy looked past Williams' violations. Id. Plaintiff claims McCroy's failure to adequately represent him and to perform her responsibilities under SCDC policy resulted in his due process rights being violated. Id. Plaintiff alleges he told McCroy he requested witnesses, and she told him she would obtain statements, but the statements were not presented at his disciplinary hearing. Id. at 9. Plaintiff also claims McCroy did not present the pictures and videos listed as evidence against Plaintiff at his hearing. Id. Plaintiff also states he asked through McCroy to have his accuser present at his hearing, and his accuser did not appear. Id.
Plaintiff alleges Palmer was listed as the charging officer on SCDC forms, and when Plaintiff informed Williams this violated SCDC policy, Williams overlooked the deficiency. Id. Plaintiff alleges Palmer abused his authority by falsifying the incident report and falsely assuming the position of the reporting officer. Id. at 13. Plaintiff claims Palmer was not present at the institution on the date in question. Id. Plaintiff also states Palmer signed and falsified documents as supervisor over the grievance process. Id. Plaintiff contends that Palmer's denial of his claims of SCDC violations violated his due process rights. Id. Plaintiff claims Palmer's negligence in conducting SCDC procedures put Plaintiff at risk of losing accrued good time sentence-related credits. Id. at 14.
II. Discussion
A. Standard of Review
Plaintiff filed his Amended Complaint 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 a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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).
B. Analysis
Plaintiff contends his due process rights were violated by the manner in which his disciplinary charges were noticed, prosecuted, and determined. ECF No. 15-1. An inmate's rights at prison disciplinary hearings are defined by the Due Process Clause of the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). The Due Process Clause applies when government action deprives an individual of a legitimate liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 570-72 (1972). In evaluating a due process claim, the court must determine whether the alleged deprivation impacts a protected interest. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). A review of the Amended Complaint shows Plaintiff fails to allege sufficient facts to indicate he was deprived of any federally protected liberty interest without due process.
Plaintiff claims his placement in lock-up as a result of his disciplinary hearing violated his due process rights. However, placement in lock-up, without more, does not constitute a deprivation of a constitutionally cognizable liberty interest. See Sandin v. Conner, 515 U.S. 472, 486 (placement in disciplinary segregation did not create a liberty interest); Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994) (“The federal constitution itself vests no liberty interest in inmates in retaining or receiving any particular security or custody status ‘[a]s long as the [challenged] conditions or degree of confinement . . . is within the sentence imposed . . . and is not otherwise violative of the Constitution.'”). Moreover, Plaintiff has not established that his confinement in lock-up exceeded a sentence in such an extreme way as to give rise to due process protections of the Fourteenth Amendment. See, e.g., Beverati, 120 F.3d at 503. Plaintiff also argues his placement in lock-up pushed his sentence date back. However, the documentation attached to Plaintiff's Amended Complaint does not show his sentence was lengthened, but instead indicates Plaintiff lost zero good time credits as a result of his disciplinary convictions. See ECF No. 15-1 at 4. To the extent Plaintiff contends his opportunity to earn good time credits was negatively impacted by his disciplinary convictions, these allegations are insufficient to state a due process violation. Although prisoners are afforded due process protections when loss of actual, earned good time credits are at issue, an inmate's inability to earn credits does not implicate a liberty interest that arises directly under the Constitution. See Meachum v. Fano, 427 U.S. 215, 225-26 (1976); Wof 418 U.S. at 557. The undersigned recommends this claim be dismissed.
Plaintiff also complains his due process rights were violated when Defendants failed to follow SCDC policies and/or procedures. However, allegations that SCDC Defendants did not follow the institution's policies or procedures, standing alone, does not amount to a constitutional violation. See Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990) (explaining a state's failure to abide by its own procedural regulations before imposing disciplinary segregation or other less than favorable conditions is not a federal due process issue and is, therefore, not actionable under § 1983).
To the extent Plaintiff claims Palmer's failure to properly process and respond to his grievances about his disciplinary hearing violated his due process rights, this claim is also subject to summary dismissal. A prisoner does not have a constitutional right to participate in a grievance procedure. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Ashann-Ra v. Commonwealth of Virginia, 112 F.Supp.2d 559, 569 (W.D. Va. 2000) (“[A] prison official's failure to comply with the state's grievance procedure is not actionable”).
Finally, Plaintiff's allegations that his counsel substitute provided ineffective assistance of counsel fails to rise to the level of a constitutional violation. Inmates do not “have a right to either retained or appointed counsel in disciplinary hearings.” Baxter v. Palmigiano, 425 U.S. 308, 315 (1976). Therefore, Plaintiff's claim that his counsel substitute was ineffective during his prison disciplinary proceeding lacks merit. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (finding there can be no ineffective assistance of counsel, when there is no constitutional right to counsel). The undersigned recommends this claim be dismissed.
III. Conclusion and Recommendation
By order issued on August 23, 2023, the undersigned provided Plaintiff an opportunity to correct the defects identified in his Complaint. The undersigned warned Plaintiff 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 without leave for further amendment. As discussed herein, Plaintiff's Amended Complaint fails to correct the deficiencies, and like the original complaint, fails to state a claim upon which relief can be granted. The undersigned recommends the court dismiss the Amended Complaint without prejudice and without issuance and service of process.
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 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).