Opinion
C/ANo.:4:19-2384-MGL-TER
04-12-2021
Willie Frazier, # 219272, a/k/a Willie Bernard Frazier, Plaintiff, v. Officer Kimbrell, Lieutenant Borem, Defendants.
Report and Recommendation
PROCEDURAL BACKGROUND
Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983 on August 23, 2019. Plaintiff filed an amended complaint on September 30, 2019, alleging a violation of his constitutional rights while housed at the Perry Correctional Institution (PCI). Plaintiff is currently housed at the McCormick Correctional Institution. On October, 16, 2020, Defendants filed a motion for summary judgment along with a memorandum in support. As the Plaintiff is proceeding pro se, the court issued an order on or about October 20, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response on November 12, 2020.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
DISCUSSION
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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 federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
DISCUSSION
In the amended complaint, Plaintiff alleges that from June 17, 2019, until September 24, 2019, while housed in the RHU lock-up at PCI, two officers, Kimbrell and Borem, conducted strip searches sexually harassing him which made him feel rape was imminent. (ECF No. 15 at 5-6). Plaintiff asserts that the two officers that conducted the strip searches did visual anal cavity searches every time he left his cell while in "perry correctional Institution Rhu lock-up" and used sexually harassing slurs. (ECF No. 15 at 5-6). Plaintiff alleges that he was denied recreation and showers if he refused the strip searches. Plaintiff asserts that he suffered psychological and emotional damages and seeks punitive damages and injunctive relief in the form of the termination of the officers. (ECF No. 15 at 6).
Plaintiff is no longer housed at the PCI. Thus, to the extent that Plaintiff seeks injunctive relief, such claims are moot as Plaintiff is no longer at the PCI. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) ("[A] prisoner's transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there.") (citing Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007)); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)(The transfer of a prisoner renders moot his claims for injunctive and declaratory relief.).
Even if Plaintiff's request for injunctive relief in the form of the termination of the defendants was considered, such relief is not available under the law because this court cannot terminate the defendants from employment. See Maxton v. Johnson, 488 F. Supp. 1030, 1032 n.2 (D.S.C. 1980) (a federal district court lacks inherent power to hire, remove, or reassign officials not within the executive control of that federal district court) citing United States v. White County Bridge Comm'n, 275 F.2d 529, 535 (7th Cir.1960).
Defendants filed their motion for summary judgment arguing that strip searches do not violate a prisoner's Fourth Amendment right to privacy if the search is reasonable. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Defendants argue that while Plaintiff alleges his rights to privacy are being infringed upon when he is searched whenever he enters or exits his cell, he does not allege that the method or manner of said searches are improper, only that they occur in the first place. Defendants contend there is an obvious legitimate penological interest in ensuring inmates do not smuggle contraband, including drugs or weapons, in and out of their cells. Therefore, absent any further evidence the searches in question are being enacted in some improper way, Plaintiff has failed to show any unreasonableness which would violate his constitutional rights. Defendants argue that even if Plaintiff could show that his being subject to strip searches somehow violated his Constitutional rights, his claims would still fail against these individual Defendants because he cannot show any specific actions by them which violated his rights.
The Fourth Amendment guards against unreasonable searches and seizures. U.S. Const. amend. IV. While the Fourth Amendment applies to lawfully confined prisoners, inmates have much more limited privacy interests than those not incarcerated. Bell,v. Wolfish, 441 U.S. 520, 545-46 (1979); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981); Hudson v. Goodlander, 494 F. Supp. 890, 891 (D. Md. 1980). A body cavity search does not violate an inmate's Fourth Amendment rights if the search is reasonable and not motivated by punitive intent. Id. at 545-46, 558-61. To determine if such a search is reasonable, courts consider: 1) the scope of the intrusion; 2) the manner in which it was conducted; 3) the justification for the search; and 4) the place in which it was conducted. Id. at 559. "In Bell, the Supreme Court held that a reasonableness inquiry requires a court to balance the need for the particular search against the invasion of the personal rights that the search entailed." Coley v. Harris, 30 F. Supp. 3d 428, 434 (D. Md. July 7, 2014) (quoting Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001)). Courts should also give great deference to decisions made by officials relating to their administration of a prison facility. Bell, 441 U.S. at 547. As the Supreme Court has cautioned, "[t]he difficulties of operating a detention center must not be underestimated by the courts." Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326 (2012).The requirement that maximum security inmates such as Plaintiff undergo regular strip searches fails to raise a constitutional claim. Bell, 441 U.S. at 559 (finding that body cavity searches are reasonable under the Fourth Amendment because in prisons the "(s)muggling of money, drugs, weapons, and other contraband is all too common an occurrence"); see also Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992) (collecting cases), cert. denied, 507 U.S. 950, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993); Spence v. Farrier, 807 F.2d 753, 755 (8th Cir.1986); Peckham v. Wisconsin Dep't of Corrections, 141 F.3d 694 (7th Cir.1998) (strip searches constitutional absent evidence they were performed for purposes of harassment or punishment); Thompson v. Sauza, 111 F.3d 694, 699 (9th Cir.1997); Franklin v. Lockhart, 883 F.2d 654 (9th Cir.1989) (approving twice-a-day visual body cavity searches for inmates in disciplinary and administrative segregation); Michenfelder v. Sumner, 860 F.2d 328, 332-333 (9th Cir.1988) (strip searches when entering and leaving cells not excessive even if prisoner escorted from one portion of a unit to the next); Amaechi v. West, 237 F.3d 356, 361 (4th Cir.2001); Reed v. Olson, 2011 WL 765559 (D.S.C. Jan. 19, 2011), report and recommendation adopted, 2011 WL 742509 (D.S.C. Feb. 24, 2011).
Here, Plaintiff has failed to present sufficient evidence to show that the strip searches were performed for any reason other than security or safety concerns. In his response to Defendants' motion, Plaintiff asserts that he was sexually harassed because the Defendants carried out a visual and cavity search. Plaintiff states that he ". . . filed a grievance to make effort in abolishing the Rhu policy strip search that's based on classification levels, rather than a security measure but no action was taken to alleviate the matter." (ECF No. 62 at 3 of 3). Plaintiff also attached a copy of his Step 2 grievance in which he stated that his "[g]rievance considers OP.22.38" and asserts the section pertaining to strip searches should be redacted from the Rhu policy arguing it is not a security issue and that "[t]he policy state that Rhu Inmates will be strip searched going and coming to these cell, except level IV and V inmates who would be pat frisked searched; this exception between 3-4 and V show a equal protection violation. OP-22-38 17.1, is sexual harrassment (sic), or can be viewed as exibitionalism punishment rather than a security issue." (ECF 62-1 at 1 of 7)(errors in original). Plaintiff has not alleged that these Defendants "sexually harassed" him in his amended complaint or in his response to Defendants' motion other than following policy to which he objects. Plaintiff has failed to show a constitutional violation and summary judgment is appropriate.
Plaintiff has only asserted emotional damage. Plaintiff alleged that he has felt as though "his life is [was] in immenient (sic) danger of being raped by those officers." (ECF No. 15 at 6). If a prisoner has not suffered serious or significant physical or mental injury as a result of the challenged conditions, he "simply has not been subjected to cruel and unusual punishment within the meaning of the [Eighth] Amendment." Strickler, 989 F.2d at 1381. Plaintiff has submitted no evidence showing he sustained any serious or significant physical or emotional injury as a result of the aforementioned conditions.
Further, to the extent the Plaintiff claims Defendants harassed him during the searches, he fails to specify any alleged conduct except that they verbalized slurs.
Cf. Dixon v. Bishop, 2020 WL 1170235, at *5-6 (D. Md. Mar. 11, 2020)(Specifically, "[a]lthough prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.'" (citations omitted); Roden v. Sowders, 84 F. App'x 611, 613 (6th Cir.2003) (allegation that correctional officer laughed at prisoner during a strip search not actionable under § 1983); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996) (disrespectful and assaultive comments did not violate Eighth Amendment); Faltas v. South Carolina, 2012 WL 988105, at *6 (D.S.C. Jan.27, 2012) ("While a threat of harm, combined with action designed to carry out the threat, may state a constitutional claim, ... verbal threats or abuse, without more, are not actionable.") (citations omitted), Report and Recommendation adopted by 2012 WL 988083 (D.S.C. March 22, 2012).
Additionally, the only allegations raised by Plaintiff against these two Defendants are that they conducted the searches and made harassing remarks. In a §1983 action, a plaintiff must plead facts indicating that a defendant acted personally in the alleged deprivation of his constitutional rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). "When a complaint contains no personal allegations against a defendant, that defendant is properly dismissed." Faltas v. South Carolina, No. 3:11-cv-3077-TLW-SVH, 2012 WL 988105, at *4 (D.S.C. Jan. 27, 2012), Report and Recommendation adopted by, 2012 WL 988083 (D.S.C. Mar. 22, 2012), aff'd 489 F. App'x 720 (4th Cir. 2012). In his response to the motion for summary judgment, Plaintiff asserts that he filed a grievance to have the policy of strip searches in RHU based on classification be abolished. (ECF No. 62 at 3). Even though Plaintiff did not like the policy, he did not provide evidence or allegations that these Defendants did anything other than follow policy in conducting the actual strip searches. Plaintiff has failed to show any specific actions taken by these Defendants which would constitute a violation of his constitutional rights. Therefore, it is recommended that Defendants' motion for summary judgment be granted.
In light of this recommendation, the Court need not address the Defendants' argument regarding qualified immunity.
RECOMMENDATION
Accordingly, it is recommended that the Defendants' motion for summary judgment (ECF No. 54) be granted and this action dismissed.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge April 12, 2021
Florence, South Carolina