Opinion
C/A No. 4:20-813-RMG-TER
05-06-2020
Supreme Raheem Ackbar, #182864, a/k/a Ronald Gary, #275886, Plaintiff, v. Christopher Monaco, Scott Lewis, Officer Thompson, Captain Harouff, K. Conrad, R.L. Turner, Brian Stirling, C. Early, Susan Duffy, J. Bennett, Adam Bradbury, D. Chandler, Rivera Lopez, Steven McCarthy, Defendants.
Report and Recommendation
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
Plaintiff was informed via court order of deficiencies in his Complaint that would subject his Complaint to summary dismissal and given an opportunity to file an Amended Complaint. (ECF No. 6). Plaintiff filed an Amended Complaint; it is still deficient and subject to summary dismissal.
In the Amended Complaint, Plaintiff alleges in July 2019 his cell was searched. Plaintiff filed a grievance regarding this search. Plaintiff filed a lawsuit regarding this search that was summarily dismissed. (ECF No. 14); Ackbar v. Monaco, No. 4:19-2774-RMG-TER. In the current action, Plaintiff alleges in July 2019, Plaintiff told Lewis that he was suing Lewis. (ECF No. 14 at 19). Plaintiff alleges in August 2019, Plaintiff informed Early that Plaintiff was suing Early. Plaintiff alleges on October 3, 2019, Monaco wrote a false incident report for the use of marijuana, which resulted in the loss of canteen and phone for ninety days. Plaintiff alleges a number of other facts revolving around the disciplinary proceedings; however, as discussed below, Plaintiff suffered no loss of a protected liberty interest and thus cannot state any alleged due process right violations as claims of constitutional magnitude.
Plaintiff alleges on December 13, 2019, Chandler wrote a false disciplinary charge as to possession of weapon and cell phone. Plaintiff received punishment of loss of canteen for 120 days, loss of phone for 120 days, loss of visitation for 120 days, and detention/a change in classification for 30 days. Plaintiff alleges a number of other facts revolving around the disciplinary proceedings; however, as discussed below, Plaintiff suffered no loss of a protected liberty interest and thus cannot state any alleged due process right violations as claims of constitutional magnitude.
Plaintiff alleges in late December 2019, Lopez filed a false charge of exhibitionism. Plaintiff received punishment of loss of canteen for 75 days, loss of phone for 75 days, and loss of visitation for 75 days, and detention/a change in classification for 30 days.
Public records show that the three disciplinary charges Plaintiff alleges violated his due process rights did not result in any loss of good time credit nor extend the duration of his sentence. 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). Canteen access is not a protected liberty interest. "There is simply no freestanding constitutional right to canteen privileges at all." Bennett v. Cannon, C/A No. 2:05-2634-GR, 2006 WL 2345983, at *2 (D.S.C. Aug. 10, 2006); Starling v. Stirling, No. CV 4:15-3636-TLW-TER, 2016 WL 4697357, at *6 (D.S.C. Aug. 2, 2016), report and recommendation adopted, 2016 WL 4613396 (D.S.C. Sept. 6, 2016); see, e.g., Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997) (holding that commissary restrictions did not entitle inmate to due process protections during disciplinary proceeding); Moore v. Ozmint, No. CIV.A. 3:10-3041-RBH, 2012 WL 762460, at *10 (D.S.C. Feb. 16, 2012), report and recommendation adopted, 2012 WL 762439 (D.S.C. Mar. 6, 2012). Loss of phone privileges is not a protected liberty interest under due process. See U.S. v. Alkire, No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr.10, 1996) (no constitutional right to the use of a telephone in prison); Chestnut v. Green, No. 3:10-1559-TLW, 2011 WL 2119306, at *4 (D.S.C. Apr. 5, 2011), report and recommendation adopted, 2011 WL 2133534 (D.S.C. May 27, 2011). Plaintiff does not have a constitutional right to visitation. See White v. Keller, 438 F. Supp. 110, 115 (D. Md. 1977), aff'd, 588 F.2d 913 (4th Cir. 1978). Neither convicted prisoners nor their family members have an inherent constitutional right to visitors because "[a]n inability to receive visitors is not atypical and unusually harsh compared to the ordinary circumstances contemplated by a prison sentence." Africa v. Vaughn, 1996 WL 65445 at *1 (E.D. Pa.1996) (collecting cases); see also Sandin v. Conner, 515 U.S. 472, 483 (1995); Ozolina v. Durant, 1996 WL 82481 at *1 (E.D. Pa.1996) (under Sandin, "there is no right to visitation protected by the Due Process Clause"); cf. Byrd v. Pittman, 1995 WL 434453 (D.D.C., July 1995) (no constitutional right to visitation because denial of visitation does not concern a protected liberty interest, and revocation of visitation will not affect duration of plaintiff's sentence); Allah v. Burt, 2010 WL 476016, at *6 (D.S.C. Feb. 3, 2010). The United States Supreme Court in Sandin found that a 30 day assignment to segregated confinement was not a protected liberty interest because it did not "present a dramatic departure from the basic conditions of [the inmate's] sentence." Sandin v. Conner, 515 U.S. 472, 485 (1995). Plaintiff has failed to state a due process claim as to any defendant.
See generally, http://public.doc.state.sc.us/scdc-public/ (with search parameters limited by Plaintiff's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
Plaintiff alleges generally his due process and equal protection rights were violated. Plaintiff has not alleged the taking 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). The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To show that his equal protection right was violated, Plaintiff must demonstrate that he was treated differently from similarly situated inmates and the discrimination was intentional or purposeful. Williams v. Hansen, 326 F.3d 569 (4th Cir.2003). Plaintiff's allegations do not give rise to a claim of constitutional magnitude.
Plaintiff's request for relief also states "release from false imprisonment." Section 1983 is not the proper vehicle for requesting release from prison; Plaintiff may file a habeas action in accordance with the applicable statute.
Plaintiff's request for relief contains reference to"return of Plaintiff's God Center Culture Islam property", and "outside mental and medical health care;" Plaintiff also attached some medical records without reference. However, there are no factual allegations in the complaint regarding such. In order to assert a plausible § 1983 claim against any particular state actor, a "causal connection" must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id. Defendants will not know how to respond to conclusory allegations, especially when "the pleadings mentioned no specific time, place, or person involved." Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id. Plaintiff has failed to state any claim of constitutional magnitude in regard to health care, religion, or property.
Plaintiff requests the immediate dismantling and permanent ban of steel coverings on prison windows. (ECF No. 14 at 30). Plaintiff makes no other allegations regarding this. To the extent Plaintiff is attempting to allege a conditions of confinement claim, such allegation regarding a metal plate on window is not of a constitutional magnitude as it is "inadequately severe to deny the minimal civilized measures of life's necessities." Wright v. Lassiter, No. 1:18-CV-90-FDW, 2018 WL 4186418, at *10 (W.D.N.C. Aug. 30, 2018)(plaintiff there was unable to view outside of window due to a metal plate).
Plaintiff requests another inmate's record of allegedly false charges be removed. (ECF No. 14 at 30). There are no other allegations in regard to this. Ackbar may not represent other prisoners. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) ("[T]he competence of a layman representing himself [is] clearly too limited to allow him to risk the rights of others."); see also Hummer v. Dalton, 657 F.2d 621, 625-26 (4th Cir. 1981) (holding that a prisoner's suit is "confined to redress for violation of his own personal rights and not one by him as a knight-errand for all prisoners").
Plaintiff attempts to allege a claim for retaliation under the First Amendment. Plaintiff alleges: "Plaintiff has filed numerous civil complaints against the defendant in relation to the conditions of his confinement." (ECF No. 14 at 26). "Plaintiff informed the defendant he was being sued by Plaintiff verbally and via kiosk. The defendant thereafter falsely charg[ed] Plaintiff, then began harassing the Plaintiff with unreasonable searches and seizures." (ECF No. 14 at 27). Plaintiff alleges: "Plaintiff has filed several civil suits against Defendant and other government officials here at Perry." (ECF No. 14 at 33). Plaintiff cites Case Nos. 19-1209, 19-2774, 19-2045, and 19-1373. "The refusal of Defendant Christopher Monaco et al to provide adequate due process protection to Plaintiff as a result of Plaintiff having filed lawsuits against prison staff constituted retaliation for petitioning government for redress of grievances and therefore violated the First Amendment." (ECF No. 14 at 34).
"[T]o state a colorable retaliation claim under Section 1983, a 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)). To establish a causal connection, "a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of [him] engaging in protected activity." Constantine, 411 F.3d at 501.
Filing an action or filing a grievance is sufficient protected activity for pleading the first element of a retaliation claim. Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017). "The Fourth Circuit has recognized that the filing of a false disciplinary action against a prisoner can satisfy the second element of a retaliation claim, which requires an adverse action sufficient to chill First Amendment rights." Guinn v. Crumpler, No. 7:18-CV-00274, 2020 WL 1666301, at *7 (W.D. Va. Apr. 3, 2020)(citing Booker v. S.C. Dep't of Corrections, 583 Fed. Appx. 43, 44 (4th Cir. 2014) ("Booker I") (concluding that the filing of a false disciplinary charge unsupported by any evidence warranting that charge "would likely deter prisoners of ordinary firmness from exercising their First Amendment rights"). However, Plaintiff fails to state a retaliation claim because of the third element. Claims of retaliation against prison inmates must be treated with healthy skepticism because many actions by prison officials are "by definition 'retaliatory' in the sense that [they are in] respon[se] to prisoner misconduct" or other concerning behaviors. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994). Plaintiff must plead more than conclusory or bare allegations of retaliation in order to state a claim of constitutional dimension. Adams, 40 F.3d at 74. While Plaintiff alleges he informed Early and Lewis and Early and Lewis had knowledge of lawsuits against Early and Lewis, Plaintiff alleges those who filed allegedly false disciplinary charges against Plaintiff were Monaco, Chandler, and Lopez, not Early and Lewis. Plaintiff does not allege that Monaco, Chandler, and Lopez had any awareness or knowledge or any motive to file false charges against Plaintiff in order to plead the third element of a retaliation claim. While Plaintiff alleges he informed Early and Lewis and Early and Lewis had knowledge of lawsuits against Early and Lewis, Plaintiff alleges no resulting adverse action causally committed by Lewis and Early to plead the third element of a retaliation claim. Plaintiff's general allegations that four lawsuits were filed- which were summarily dismissed sua sponte by the court and never served upon any defendants- is insufficient to plead the third element of a retaliation claim. Plaintiff must allege facts showing that his exercise of his constitutional right was a substantial factor motivating the retaliatory action. See, e.g., Wagner v. Wheeler, 13 F.3d 86, 90-91 (4th Cir. 1993) (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977) ) ("a causal relationship between the protected expression and the retaliatory action" is required).
With no causation facts plausibly alleged, retaliation claims must be summarily dismissed. See Joyce v. Dotson, No. 7:17CV00498, 2018 WL 1830738, at *2-3 (W.D. Va. Apr. 17, 2018). Plaintiff has failed to state a claim regarding all three elements of a retaliation claim against any defendants.
To the extent Plaintiff is suing in regard to the SCDC grievance process, there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
Plaintiff has failed to state a claim upon which relief could be granted.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can "dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order." Workman v. Morrison Healthcare, 724 Fed. Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed. Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished). Thus, in line with Fourth Circuit cases, the undersigned recommends the dismissal in this case be with prejudice, as Plaintiff has had an opportunity to amend has failed to cure deficiencies in his amended complaint.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge May 6, 2020
Florence, South Carolina
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).