Opinion
C/A 9:22-01018-CMC-MHC
05-18-2022
Angelo F. McKelvie, Plaintiff, v. D.H.O. Brown, Disciplinary Hearing Officer, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, MAGISTRATE JUDGE
CHARLESTON, SOUTH CAROLINA
This a civil action filed by a state prisoner. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. In an Order dated April 14, 2022, Plaintiff was advised of pleading deficiencies and given an opportunity to amend his Complaint. ECF No. 6. He has not filed an amended complaint.
I. BACKGROUND
Plaintiff is an inmate at the Lee Correctional Institution, part of the South Carolina Department of Corrections (SCDC). His claims concern a disciplinary infraction conviction. Plaintiff contends that Defendant Disciplinary Hearing Officer (DHO) Brown violated his constitutional rights on September 21, 2021. Specifically, he appears to claim that the complaint or incident report about the disciplinary charge was “not signed by major or designee as required by Policy and the disciplinary hearing failed to acknowledge this by dismissing case as required.” Complaint, ECF No. 1 at 5. Plaintiff contends that, after the DHO found him guilty of the disciplinary infraction, he suffered serious episodes of depression, a lack of sleep, and a loss of appetite. He requests monetary damages for mental anguish and a denial of his Fourteenth Amendment rights. Id. at 6.
Records from SCDC indicate that Plaintiff is serving life sentences for kidnapping and murder, as well as sentences on other charges. These records further indicate that Plaintiff was convicted on a disciplinary charge of exhibition and public masturbation in September 2021. He was sentenced to disciplinary detention for 45 days; loss of canteen, telephone, and visitation privileges for 135 days; and loss of television privileges for 360 days. See SCDC Incarcerated Inmate Search, http://public.doc.state.sc.us/scdc-public/ [Search Inmate “Angelo McKelvie”] (last visited May 18, 2022).
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., 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).
II. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
Plaintiff's claims are subject to summary dismissal because he has not alleged that he was denied a protected liberty interest. Disciplinary proceedings which implicate a protected liberty interest demand due process. See Wolff v. McDonnell, 418 U.S. 539 (1974). However, to prevail on a due process claim, an inmate must first demonstrate that he was deprived of “life, liberty, or property” by governmental action. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). When the punishment does not cause the original sentence to be enhanced, protected interests will be generally limited to freedom from restraint that imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that disciplinary segregation did not present the type of atypical, significant deprivation in which a state might create a liberty interest). Here, Plaintiff has not alleged that he suffered the loss of any good-time credits (as noted above, SCDC records indicate no loss of goodtime credits) or any other protected liberty interest as a result of the disciplinary conviction.
Even if Plaintiff could allege a loss of a protected liberty interest, he has not alleged a constitutional violation as there is no indication that the alleged failure of Defendant to sign the incident report violated Plaintiff's due process rights. Where a prison disciplinary hearing may result in the loss of good-time credit, Wolff holds that due process requires the following: 1. Giving the prisoner written notice of the charges at least 24 hours before he appears for his disciplinary hearing; 2. Providing the prisoner a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action; 3. Allowing the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be an undue hazard to institutional safety or correctional goals; 4. Permitting the prisoner the aid of a fellow prisoner, or if that is forbidden, aid from staff or a competent inmate designated by staff, if the prisoner is illiterate or the complexity of the issue makes it unlikely that the prisoner will be able to collect and present the evidence necessary for an adequate comprehension of the case; and 5. Providing impartial fact finders. Wolff, 418 U.S. at 563-576. There is no indication, pursuant to Wolff, that a failure of the Defendant to sign the disciplinary complaint or incident report resulted in a violation of Plaintiff's due process rights.
Additionally, to the extent Plaintiff is attempting to state a due process violation as to his placement in disciplinary detention, his claim fails. While the Fourth Circuit has held that a prisoner may set forth a viable due process claim relating to a custody status decision under some circumstances, Plaintiff has failed to set forth any facts sufficient to proceed on such a claim in this case. See Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015). To determine whether an “atypical and significant hardship” has been imposed, the Supreme Court has outlined a fact intensive inquiry into “(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, 791 F.3d at 530 (citing Wilkinson v. Austin, 545 U.S. 209 (2005)). Here, Plaintiff was only placed in disciplinary detention for 45 days such that he is not challenging an ongoing, indefinite period. It is well established that a temporary assignment to segregated confinement-for thirty days or even six months, even with reduced privileges, few out-of-cell activities or socialization opportunities, and heightened security measures-is not an atypical or significant hardship. See Sandin, 515 U.S. at 485-86; Beverati v. Smith, 120 F.3d at 504 (finding six months detention under conditions dictated by administrative segregation policies was not atypical under Sandin). Plaintiff has not alleged facts concerning the magnitude of his confinement restrictions and has not alleged any collateral consequences to his sentence. The facts presented by Plaintiff do not state a due process violation under the precedents set out in Incumaa and Wilkinson.
To the extent Plaintiff challenges his disciplinary sanctions that involve a loss of privileges, he also has not stated a constitutional claim. Plaintiff does not have a protected liberty interest in making phone calls. 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) (reviewing cases noting the brief suspension of telephone privilege does not amount to constitutional violation), report and recommendation adopted, 2011 WL 2133534 (D.S.C. May 27, 2011). Additionally, neither prisoners nor would-be visitors have a constitutional right to visitation. See White v. Keller, 438 F.Supp. 110, 115 (D. Md 1977) (but leaving open the possibility that a permanent ban on visitation could implicate the Eighth Amendment), aff'd, 588 F.2d 913 (4th Cir.1978); see also Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 461, (1989) (finding no right to visitation guaranteed by the Due Process Clause).
Plaintiff also does not have a constitutional right to canteen access. See, e.g., Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002) (“no constitutional right to purchase food from the canteen”); Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997) (an inmate's thirty day commissary restrictions “[did] not implicate due process concerns”); Goodwin v. Schwartz, C/A No. 8:10-1760-CMC-BHH, 2010 WL 3489092, at * 2 (D.S.C. Aug. 11, 2010) (“Canteen access is not a protected liberty interest.”), report and recommendation adopted, 2010 WL 3489097 (D.S.C. Sept.1, 2010). Finally, Plaintiff cannot show that the loss of television privileges for 360 days constituted a constitutional violation. See, e.g., May v. Baldwin, 895 F.Supp. 1398, 1409 (D. Ore. 1995) (brief suspension of television and telephone privilege does not amount to constitutional violation), aff'd, 109 F.3d 557 (9th Cir. 1997), cert. denied, 522 U.S. 921 (1997); James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir.1992) (“a prisoner who is denied ... a television set has not set out a deprivation of [his rights under] ... the eighth amendment”), cert. denied, 506 U.S. 818 (1992); Conn v. Stolle, C/A No. 1:11-cv-00758-CMH-TCB, 2011 WL 3321136, at *3 (E.D. Va. July 29, 2011) (finding no constitutional right to watch television and recognizing that prisoners do not have a direct constitutional right to visitation), aff'd, 460 Fed.Appx. 276 (4th Cir. 2012).
Plaintiff asserts that Defendant's actions violated “Policy.” However, a claim that Defendant failed to follow SCDC policies or rules is not actionable in a § 1983 action because a violation of SCDC policies and/or procedures does not constitute a violation of Plaintiff's constitutional rights. See Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992); cf. Johnson v. S.C. Dep't of Corrs., No. 06B2062, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (a plaintiff's allegation that defendants did not follow their own policies or procedures, standing alone, does not amount to a constitutional violation) (citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990) (If 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)).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Complaintwithout issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either 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, 281 (4th Cir. 2018); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993).
Plaintiff's attention is directed to the important notice on the following 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:
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).