Opinion
C/A 5:20-04229-TMC-KDW
10-27-2021
Tony L. Moore, Plaintiff, v. Tishiro P. Inabinet; Weston Mosley; Bernard Moore; Robert Brannon, Raymond Gathers, and Bryan P Stirling, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
Tony L. Moore, “Plaintiff, ” is an inmate with the South Carolina Department of Corrections (“SCDC”), and filed this 42 U.S.C. § 1983 action alleging Defendants violated his constitutional rights. This matter is before the court on Defendants' Motion for Summary Judgment, ECF No. 68, filed on August 9, 2021. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) the court advised Plaintiff on August 9, 2021, of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' Motion. ECF No. 70. Plaintiff filed a Response to the Motion on October 8, 2021, ECF No. 82, and Defendants replied on October 12, 2021, ECF No. 83. Additionally, this matter is before the court on Plaintiff's Motion for Summary Judgment, ECF No. 77, filed on September 24, 2021. Defendants responded to Plaintiff's Motion on October 8, 2021. ECF No. 82. These matters are now ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because these motions are dispositive, the undersigned enters this Report for the district judge's consideration.
I. Factual Background
Plaintiff initially filed this action on December 7, 2020, and in his Complaint, he purports to assert allegations against Defendants for constitutional violations that occurred while he was housed at Kirkland Correctional Institution (“KCI”) and Lee Correctional Institution (“LCI”). ECF No. 1. Specifically, Plaintiff alleges that Defendants violated his Eighth Amendment rights that prohibit cruel and unusual punishment and his Fourteenth Amendment due process rights. Id. at 6. He maintains that Defendant Inabinet fabricated an incident, leading to Plaintiff being “charged” and removed from the HLBMU [High Level Behavioral Management Unit] program. Id.
Plaintiff alleges that the events leading up to his Complaint occurred on March 23, 2019, when he was attacked by an inmate in his cell. Id. at 10. Plaintiff alleges that he was stabbed by Inmate Mack after Defendant Brannon unlocked the wing door and allowed Inmate Mack to enter Plaintiff's wing and attack him. Id. He maintains that on March 23, 2019, Defendant Inabinet wrote up an incident report, and because of the manner in which the incident report was written, Plaintiff was removed from a mandatory program and placed back in RHU [Restricted Housing Unit]. Id. at 7. He indicates that the report states that Inmate Mack told officers that Plaintiff put a knife at his throat, and Inmate Mack “gave Plaintiff what he wanted.” Id. Plaintiff maintains the entire procedure was illegal because Inmate Mack never informed Defendant Inabinet what was taken, and Plaintiff was charged with “robbery with force.” Id. Plaintiff indicates that although charges against him were dismissed, he was removed from a mandatory program and placed back in RHU for nine months because of the charges. Id. Plaintiff alleges that Defendant Inabinet intentionally lied about Plaintiff's actions in an effort to have him removed from the HLBMU Program. Id.
Plaintiff alleges that Defendants Mosley and Moore failed to complete a proper investigation concerning the incident. Id. Further, he alleges that both allowed Defendant Inabinet to manipulate them into lying about an incident that never took place. Id. Plaintiff represents that video footage will depict him entering Inmate Mack's cell, but he did not have a weapon or commit acts of violence. Id. Concerning Defendant Brannon, Plaintiff alleges that he failed to protect him and failed to comply with his duties as a correctional officer. Id. Plaintiff represents that Defendant Brannon admitted and acknowledged that he let Inmate Mack on the level 2 side willingly and knowingly though he was not allowed to stay there. Id.
Plaintiff represents that Defendant Gathers was negligent in failing to protect him and failed to follow the SCDC rules and regulations. Id. at 8. He maintains that Defendant C. Carter also failed to comply with SCDC and failed to comply with her duties as an SCDC officer. Id. Finally, Plaintiff maintains that Defendant Stirling has continued to allow SCDC to operate in a dangerous and inadequate matter. Id. He further alleges that within SCDC there is no secure structure for the security system, and there are not enough security staff or medical personnel. Id.
Although Plaintiff named Carter as a Defendant in this action, service was never executed because she could not be located. ECF No. 24.
In describing his injuries, Plaintiff indicates that Inmate Mack stabbed him in the face, and Defendant Inabinet refused to allow him to receive medical treatment. Id. at 12. Further, he represents that he was also stabbed on April 1, 2015, and June 6, 2009, when he suffered severe injuries and needed surgery. Id. Plaintiff seeks $250,000 in compensatory damages; $500,000 in punitive damages; and a jury trial. Id.
II. Standard of Review
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 251. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989).
III. Analysis
a. Failure to Exhaust
Defendants argue that Plaintiff's purported claims should be dismissed because Plaintiff has failed to exhaust his administrative remedies. See ECF No. 68 at 3. Defendants maintain that “Plaintiff has not brought any of these claims because he failed to first exhaust the available administrative remedies prior to filing this action.” Id. In response, Plaintiff argues that Step 1 and Step 2 grievances pertaining to this matter were filed. ECF No. 76 at 2. Plaintiff refers to the referenced grievances as Exhibits 6 and 7. Id. In Reply, Defendants maintain that Plaintiff presents no evidence to refute their evidence presented to the court that indicates Plaintiff failed to raise any issues or claims with respect to an assault occurring on March 23, 2019, involving Inmate Tony Mack, any injuries sustained on that date from an assault, and any denial of medical care for injuries sustained in an assault. ECF No. 83 at 2. They represent that “Plaintiff has identified a single grievance, namely Grievance No. LCI-0297-19, in which he complained that he was removed from the High Level Behavioral Management Unit (HLBMU) Program and asked to be ‘replaced' into that program after disciplinary charges were dismissed.” Id. They argue that Grievance No. LCI-0297-19 did not raise any issues pertaining to the assault occurring on March 23, 2019, the injuries allegedly sustained, nor any denial of medical care. Id. Based on the representations from both parties, the undersigned recommends dismissing any excessive force or medical indifference claims for failure to exhaust administrative remedies as discussed below.
42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739).
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court[.]” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Any consideration of administrative remedies pursued after the commencement of the litigation would only serve to frustrate both purposes of the PLRA's exhaustion requirement. Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). Thus, “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005).
In support of their argument, Defendants outline the steps required to exhaust a grievance within the SCDC grievance processing system, and they have submitted the affidavit of Sherman Anderson, General Counsel and Chief of the Inmate Grievance Branch of SCDC, as an attachment. See ECF No. 68-2. Anderson represents that inmates are required to attempt an informal resolution of an issue by using the Kiosk system or a Request to Staff Member Form prior to filing a formal grievance. Id. ¶¶ 4-6. Thereafter, the inmate may file a Step-One Grievance, see id. ¶¶ 6-7, and after filing the Step-One Grievance, the inmate is then required to file a Step-Two Grievance within five (5) calendar days of the Step-One Grievance being returned, see id. at ¶ 9.
Concerning Plaintiff's claims here, Anderson attests that there is no record of Plaintiff filing a grievance concerning claims that Plaintiff was stabbed in the face and then denied medical treatment for his injuries. See id. at ¶ 11. Specifically, Mr. Anderson avers: “There are no grievances filed that address an assault occurring on March 23, 2019, involving Plaintiff [and] Inmate Tony Mack, and injuries sustained on that date from an assault, and any denial of medical care for injuries sustained in the assault.” Id. Mr. Anderson acknowledges Plaintiff filed a grievance concerning his dismissal from the HLBMU program on May 9, 2019, and later filed a Step 2 grievance concerning same. Id. at ¶ 12.
In Grievance Number LCI-0297-19, Plaintiff indicates that the agency's policies and procedures were violated and his due process were violated when his custody was changed due to a disciplinary infraction that was dismissed. ECF No. 76-1 at 7. He argues there was never a review held that recommended he be housed in a new security level. Id. Further, he argues he was never given a form explaining his custody change nor was an official investigation completed. Id. Additionally, he indicates that inmates should be present at all classification hearings. Id. Plaintiff filed a Step-2 grievance concerning his custody assignment. Id. at 9.
The undersigned finds that Plaintiff failed to properly exhaust his administrative remedies concerning any claims related to excessive force, failure to protect, or medical indifference. However, Plaintiff filed grievances concerning his custody classification and removal from the HLBMU program as demonstrated in the grievances he presented to the court. See ECF No. 76-1 at 7-9. As explained, any other claims purportedly brought before this court were never properly exhausted or raised in a grievance. Therefore, because Plaintiff failed to exhaust his available administrative remedies before filing this action, the undersigned recommends granting Defendants' Motion for Summary Judgment and dismissing Plaintiff's causes of action for excessive force, failure to protect, or medical indifference. See Pozo, 286 F.3d at 1024 (holding that an inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.”); see also Blevins v. Loranth, No. 09-788-TLW-BM, 2010 WL 670099, at *3 (D.S.C. Feb. 22, 2010), (“Plaintiff needed to file and exhaust his administrative claim [] at FCI Williamsburg prior to proceeding with this lawsuit.”); Johnson v. Ozmint, 567 F.Supp.2d 806, 814 (D.S.C. 2008) (“There is no evidence that Plaintiff appealed the initial denial of his grievance relating to his cell door being locked. . .”). The undersigned finds that Plaintiff exhausted his administrative remedies concerning his dismissal from the HLBMU Program, and that claim will be addressed on the merits in the following section.
b. Liberty Interest in HLBMU Program
Defendants maintain that Plaintiff's due process claim fails on the merits, and they are entitled to summary judgment, because Plaintiff has not pled or proven that his dismissal from the HLBMU Program implicated a liberty interested protected by the due process clause. ECF No. 68-1 at 6-9. In Response, Plaintiff argues that Defendants' removal of him from the HLBMU Program prohibits him from earning work credits. ECF No. 76 at 2. Thereafter, Plaintiff maintains that many policies and procedures were violated, and had rules been followed “all this could've been avoided ” Id. at 3. In reply, Defendants argue that Plaintiff has made no argument nor presented any evidence to demonstrate that he enjoyed a protected liberty interest in his continued placement in the HLBMU Program (or “the Program”). ECF No. 83 at 2.
The Fourteenth Amendment provides that no “State [shall] deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV. “In determining whether state officials have deprived an inmate, [] of a procedurally protected ‘liberty,' this Court traditionally has looked either (1) to the nature of the deprivation (how severe, in degree or kind) or (2) to the State's rules governing the imposition of that deprivation (whether they, in effect, give the inmate a ‘right' to avoid it).” Sandin v. Conner, 515 U.S. 472, 493 (1995). “In order to prevail on either a procedural or substantive due process claim, inmates must first demonstrate that they were deprived of ‘life, liberty, or property' by governmental action.” Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997); see also Burnette v. Fahey, 687 F.3d 171, 181 (4th Cir. 2012) (laying out two-step process for procedural due process violations). The court must first consider whether, and to what extent, the inmate has a protectable interest under the Due Process Clause. Id. If the court determines that the inmate has asserted a protectable interest, the court must then determine whether the government failed to afford him the minimum procedural protections required by the Fourteenth Amendment in depriving him of this interest. Id.
Either the Due Process Clause or state laws afford plaintiffs protected liberty interests. Berrier v. Allen, 951 F.2d 622, 624 (4th Cir. 1991); see also Hewitt v. Helms, 459 U.S. 460, 466 (1983) (“Liberty interests protected by the Fourteenth Amendment may arise from two sources-the Due Process Clause itself and the laws of the States.”). The Due Process Clause does not create a protected liberty interest in an inmate's particular classification. See Id. (finding the Due Process Clause does not independently create “an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters”). Moreover, 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); Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks omitted) (“Sandin found no liberty interest protecting against a 30-day assignment to segregated confinement because it did not present a dramatic departure from the basic conditions of the [inmate's sentence].”); Prieto v. Clarke, 780 F.3d 245, 254 (4th Cir. 2015) (“Prieto, like any other inmate, can only be deprived of that to which he is entitled.”).
Additionally, South Carolina law does not afford Plaintiff a protected liberty interest in this situation. See e.g., Slezak v. Evatt, 21 F.3d 590, 595 (4th Cir. 1994) (“[B]road empowering statutes do not themselves create the liberty interest necessary to support the inmates' claim.”); Wiles v. Ozmint, No. 0:05-2111 CMC-BM, 2006 WL 2260136, at *8 (D.S.C. Aug. 7, 2006) aff'd, 221 Fed.Appx. 257 (4th Cir. 2007) (“South Carolina law confers no protected liberty interest upon inmates of the South Carolina Department of Corrections from being placed in administrative segregation or any particular prison.”); Rivera v. Byars, No. 8:12-cv-02219-JMC, 2013 WL 4697177, at *5 (D.S.C. Aug. 30, 2013) (“[T]o the extent Plaintiff argues Defendants have violated SCDC policies or procedures by denying his attendance at meetings to review his classification, assuming without deciding this claim is true, violations of prison policies and/or procedures do not rise to the level of a constitutional violation.”).
Defendants argue that Plaintiff has not alleged or shown that his dismissal from the Program constitutes an atypical or significant hardship in relation to the ordinary incidents of prison life. ECF No. 68-1 at 8. Further, Defendants maintain it is well settled that issues regarding classification, custody level, and housing assignments do not give rise to protected liberty interests. Id. In support of their summary judgment motion, Defendants have submitted the affidavit to Defendant Inabinet. ECF No. 68-3.
Defendant Inabinet, the program director for the HLBMU within SCDC, attests that when he oversaw the Program, he supervised the clinical and security staff assigned to the program [and] participated in treatment team activities for the inmates assigned to the program. ECF No. 68-3 at ¶¶ 1-3. As Defendant Inabinet explains: “The HLBMU program was designed to be a step-down facility for inmates who were assigned to long term segregation units, particularly the [Substantiated Security Risk].” Id. at ¶ 4. He further explains that the Program is designed “as a therapeutic program to disrupt a cycle of repeated disciplinary infractions resulting in frequent, repetitive sanctions that result in long term segregation placement.” Id. Defendant Inabinet represents that the HLBMU was located on a wing in the D Dorm at KCI, and the Restricted Housing Unit (“RHU”) was located on the other wing of the dorm.” Id. at ¶ 6. According to Defendant Inabinet, the HLBMU is a type of RHU where inmates live in single cells with limited out-of-cell time based on their behavioral program level. Id.
Concerning Plaintiff's placement in the Program, Defendant Inabinet avers that he was admitted in July of 2018. Id. at ¶ 7. Defendant Inabinet explains that Plaintiff was required to leave the Program in mid-January of 2019, and returned on or about March 13, 2019. Id. at ¶¶ 7-8. Defendant Inabinet attests that the Program's treatment team decided to remove Plaintiff from the Program because of his March 23, 2019 conduct as well as his disciplinary history. Id. at ¶ 12. Defendant Inabinet avers that Plaintiff was “out of place on the second tier” where Inmate Mack's cell was located. Id. at ¶ 9.
The court cannot find that the conditions of Plaintiff's confinement in RHU as opposed to the Program give rise to the level of an atypical and substantial hardship. Furthermore, Plaintiff has not alleged nor shown that his dismissal from the HLBMU Program constitutes an atypical or significant hardship in relation to the ordinary incidents of prison life. See Incumaa v. Stirling, No. 9:12-CV-3493-DCN, 2014 WL 958679, at *10 (D.S.C. Mar. 11, 2014), aff'd in part, rev'd in part and remanded, 791 F.3d 517 (4th Cir. 2015), as amended (July 7, 2015); Menei v. Rubenstein, 2012 WL 4845659, at *5 (S.D. W.Va. October 11, 2012). Further, as Defendants argue, Plaintiff does not have a protected liberty interest in continued participation in the Program. In the Supreme Court case of McKune v. Lile, the Court acknowledged: “An essential tool of prison administration [] is the authority to offer inmates various incentives to behave. The Constitution accords prison officials wide latitude to bestow or revoke these perquisites as they see fit.” 536 U.S. 24, 39 (2002). The Court found a previous decision held that “an inmate's transfer to another facility did not in itself implicate a liberty interest, even though that transfer resulted in the loss of ‘access to vocational, educational, recreational, and rehabilitative programs.'” Id.; see also Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (holding an inmate has no legitimate statutory or constitutional entitlement sufficient to invoke due process concerning a prisoner's classification or eligibility for rehabilitation programs); O'Bar v. Pinion, 953 F.2d 74 (4th Cir. 1991) (removing inmate from work release, transferring him, placing him in administrative segregation, and changing his custody grade did not deprive him of equal protection or implicate due process liberty interest); Altizer v. Paderick, 569 F.2d 812, 813 (4th Cir. 1978) (holding inmate was not denied any constitutional right by the action of the prison administrators in removing him, without a hearing, from assignment to the inmate advisor program); Temple v. Lewis, No. 8:19-CV-2659-SAL-JDA, 2020 WL 8872625, at *6 (D.S.C. Dec. 7, 2020), report and recommendation adopted, No. 8:19-CV-2659-JD-JDA, 2021 WL 982482 (D.S.C. Mar. 16, 2021) (finding Plaintiff's allegations that Defendants violated SCDC institutional policy concerning his removal from a Character Based Rehabilitation Program do not support a due process claim and do not implicate due process concerns).
Because the court has determined that Plaintiff does not have a protectable liberty interest in participation in the Program and avoiding administrative segregation, the procedural protections required by the Fourteenth Amendment are not implicated. Accordingly, the undersigned recommends granting Defendants summary judgment on Plaintiff's due process claims.
Based on the undersigned's recommendations concerning Plaintiff's failure to exhaust and his purported due process claim, it is unnecessary to address the remainder of Defendants' arguments concerning summary judgment.
c. Plaintiff's Motion for Summary Judgment, ECF No. 77
Plaintiff filed a Motion for Summary Judgment on September 24, 2021, ECF No. 77, well after the dispositive motions deadline of August 9, 2021, ECF No. 60. There, Plaintiff makes many of the same arguments as he made in his Response to the Summary Judgment Motion. See id. Based on the recommendations herein as well as the court's review of Plaintiff's Motion for Summary Judgment, the undersigned finds the Motion is without merit and recommends it be denied.
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 68, be granted, Plaintiff's Motion for Summary Judgment, ECF No. 77, be denied, and this action be dismissed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”