Opinion
C/A No. 4:17-3100-RBH-TER
01-24-2019
BERNARD SCOTT, Plaintiff, v. PATRICIA RAY, ALLISON DAYS, ANGELA SUMPTER, AND CPL. SHANNON, Defendants.
Report and Recommendation
This is a civil action filed pro se by Bernard Scott ("Plaintiff") on November 14, 2017. At all times pertaining to the allegations in the complaint, Plaintiff was a pre-trial detainee housed at the Glenn Campbell Detention Center/Darlington County Detention Center (DCDC). This matter is currently before the court on the motion for summary judgment filed on behalf of Defendants on April 30, 2018. (ECF #34). As the Plaintiff is proceeding pro se, the court issued an order on or about April 30, 2018, 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 document entitled "Declaration For Retaliation" appearing to allege changes in classification as a form of retaliation. Therefore, the Defendants were given twenty days to brief the issue and Plaintiff was given fifteen days from the date Defendants responded to the order to file a response. Defendants filed a reply to the order on October 31, 2018. Plaintiff did not file a response.
Based on Plaintiff's last notice of change of address, he is no longer incarcerated. (ECF #56).
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. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 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.
ANALYSIS
Plaintiff alleges that while a pre-trial detainee housed at the Glenn Campbell Detention Center/Darlington County Detention Center ("DCDC"), he was unfairly classified as a security threat and not allowed to have a cell mate by Corporal Shannon who based his classification upon hearsay from other inmates that he sexually propositioned another detainee. Additionally, Plaintiff alleges in his complaint that his classification changed as a form of retaliation after he filed a grievance against Defendant Sumpter for calling Plaintiff a crackhead. (ECF No. 1 at 7). Plaintiff asserts that Defendants claimed the classification changed to place him in a cell by himself without a cell mate due to the fact they said he was a registered sex offender. Plaintiff alleges that before he filed the grievance he was allowed to have cellmates and that other registered sex offenders were allowed to have cellmates. Plaintiff also attached his declaration stating that the classification issues began after filing the grievance against Officer Sumpter for calling him a crackhead. Plaintiff submitted a declaration from another detainee, Robert Ham, stating that Sumpter told him that Plaintiff filed a grievance on her, that she was going to get him back for it, and that she would make his time hard. Plaintiff also submitted a declaration from inmate William Johnson who declared that he heard "Sgt. Sumpter called Mr. Scott a crackhead then she walk away from his cell. Called him a 'faggot ass mother fucker, ain't nothing but trouble.'" (ECF. No. 1-1 at 4). In his response to the motion for summary judgment, Plaintiff states that "[t]his suit is an issue of defamation of character, written and slander (oral defamation) which harmed Plaintiff's reputation . . ." (ECF No. 46 at 7).
Confinement conditions of pretrial detainees are to be evaluated under the due process clause rather than the Eighth Amendment prohibition against cruel and unusual punishment. Bell, 441 U.S. at 535 n.16. To prevail on a conditions of confinement claim, a pretrial detainee must show either (1) an expressed intent to punish, or (2) lack of a reasonable relationship to a legitimate nonpunitive governmental objective, from which a punitive intent may be inferred. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citing Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)). Prison officials act with the requisite culpable intent when they act with deliberate indifference to the inmates' suffering. Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.) (citing Farmer v. Brennan, 511 U.S. 825 (1994)), as amended, 75 F.3d 448 (9th Cir.), cert. denied, 516 U.S. 916 (1995).
Defendants filed a motion for summary judgment arguing prisoners generally do not have a constitutionally recognized liberty interest in a particular security classification or prison placement, and Plaintiff cannot show a violation of a protected liberty interest due to his disciplinary detention or custody classification. Additionally, Defendants assert that Plaintiff has failed to set forth any facts sufficient to proceed on such a claim in this case. As to any allegations that Defendants failed to follow certain policies or rules as to his classification or that Defendants purposely refused to investigate his grievances, the allegations fail to state a constitutional claim. Defendants argue that any allegations concerning verbal abuse fail to state a cause of action as allegations of verbal abuse of inmates by guards without more, fail to state a claim under §1983. With regard to Plaintiff's allegations of retaliation for filing a grievance, Defendants responded that the action should be dismissed and provided the affidavit of Patricia Ray "Ray", the Director of Glenn Campbell Detention Center, in support of the motion. (ECF #62-1). Ray attests that every detainee and inmate entering the GCDC is instructed on the rules of conduct within the facility, receives the instructions by the use of a video presentation, and receives a copy of the Darlington County Detention Center Inmate Handbook. (Id.) Detainees are expected to read and refer to the Handbook to guide their conduct within the facility, to follow the rules and regulations, and to obey commands of correctional officers. (Id.). Darlington County Detention Center has two categories for discipline: Minor and Major. (Id.). Major offenses are defined as any offense that carries a possible sanction of segregation in excess of 72 hours, assignment to more restrictive housing, or loss of good time credits. (Id.). Two minor offenses committed at the same time or within a 30 day time period constitute a major infraction. (Id.). Any detainee charged with a major offense may request a disciplinary hearing before an impartial Hearing Committee, may appeal the decision if not satisfied within five days of the hearing date, and the Director/designee is allowed five working days to investigate and respond to the appeal. (Id.). A decision by the Director/designee is considered final and there are no further appeals. A detainees' failure to follow these rules and regulations will result in disciplinary action. (Id.). Plaintiff was charged with passing personal property on March 21, 2018, to another detainee. Plaintiff was charged with committing two minor offenses for disobeying an Order not to pass anything across a red line and by passing personal property to another detainee. (Id.). However, even though Plaintiff could have been charged with two minor offenses which would have led to a major violation, he was only charged with one and placed on 24 hour lock down. On April 19, 2018, Plaintiff was charged with a major violation when observed passing contraband to another detainee, George Matuse. As a result, Plaintiff was transferred to maximum segregation pending a review board hearing. (Id.). A disciplinary hearing was held on April 23, 2018, and Plaintiff was sanctioned thirty days for passing contraband, a major offense. (Id.). Plaintiff did not appeal the conviction.(Id.). Plaintiff was placed in disciplinary segregation for thirty days because he repeatedly violated the rules of the Detention Center and not for retaliation. (Id.). Plaintiff continued to violate detention center rules. (Id.). On May 4, 2018, Plaintiff, along with eleven other inmates, were sanctioned for blocking or covering his cell window, which was another minor violation, and when coupled with the other minor and major violations, appropriately warranted his assignment to disciplinary segregation. (Id.).
After the Motion for Summary Judgment was filed, Plaintiff filed a "Declaration for Retaliation." (ECF No. 39). In this declaration, Plaintiff asserts as follows:
I Bernard Scott declares under penalty of perjury that on 4-19-18 the Defendant Director Patricia Ray placed me in max-seg unit for a minor infraction, that by policy I should have been placed on room restriction. I was seen on camera passing an item that I purchased off of canteen to another inmate. On 4-23-18 I was given a hearing for the infraction by Administration officers when I quoted policy to them on the infraction to show that Mrs. Ray is going to the extreme with this punishment when Capt. McFadden caught attitude and stop hearing by sentencing me to 30 days max-seg which is a abuse of the policy to the extreme that I feel is a deliberate retaliation to the lawsuit. Being on max-seg I have no privileges, no visitation, phone, recreation, canteen, and 3 showers a week and I am in belly iron and shackles when escorted to showers, along with 2 sandwich 3 times a day. This is to harsh of a punishment for the infraction.(ECF No. 39).
Defendants filed a reply to Plaintiff's declaration of retaliation stating that in applying Martin v. Duffy, 858 F.3d 239 (4th Cir. 2017) to this case, Plaintiff clearly exercised his First Amendment rights in requesting a hearing on his April 19, 2018, charge for passing contraband and in exercising his rights to file this action. However, Defendants contend, Plaintiff has not sufficiently demonstrated that Defendants took some action that adversely affected his First Amendment rights as Defendants' conduct was consistent with the rules of conduct for the detention center and his reassignment to maximum segregation was based upon his repeated violations of the rules of the detention center. Therefore, Defendants assert Plaintiff has failed to demonstrate that there is a causal relationship between his protected activity and the detention center's conduct of moving him to maximum segregation.
First, any allegations by Plaintiff regarding the failure of Defendants to properly handle his grievances should be dismissed as there is no constitutional right to participate in grievance proceedings. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Any allegations with regard to Defendants failing to follow the rules and procedures of the detention center should be dismissed as: "The failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation." Johnson v. S.C. Dep't of Corrections, No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar.21, 2007) (citing United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1978)); see also Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir.1990) (if state law grants more procedural rights that the Constitution requires, a state's failure to abide by that law is not a federal due process issue); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C.1992) (violations of prison policies which fail to reach the level of a constitutional violation are not actionable under § 1983). Plaintiff's allegations regarding classification fail as there is no liberty interest created in custodial classifications. Meachum v. Fano, 427 U.S. 215, 225 (1976). Further, the Fourth Circuit has held that a prisoner may set forth a due process claim relating to custody classification if he can show that there exists a liberty or property interest of which a person has been deprived. The Supreme Court has held that a prisoner has no right under the Due Process Clause to be incarcerated in a particular facility or to be held in a specific security classification, barring some showing by the prisoner that his confinement posed an atypical and significant hardship in relationship to the ordinary incidents of prison life. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983). To demonstrate that he has a liberty interest in avoiding segregation and loss of privileges, Plaintiff must demonstrate his segregation and loss of privileges constitute atypical and significant hardships in relation to the general population. See Incumaa v. Stirling, 791 F.3d 517, 529 ($th Cir. 2015). In Sandin v. Conner, 515 U.S. 472, 485 (1995), the Supreme Court concluded that the plaintiff's "segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." 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, 214 (2005)). Here, other than a loss of privileges, Plaintiff has alleged no other hardship associated with his segregation, Plaintiff was sentenced to maximum segregation for a period of thirty days, and Plaintiff has not alleged any collateral consequences on any sentence as he was a pretrial detainee and has since been released from the DCDC on June 27, 2018, pursuant to his notice of change of address (ECF No. 56).
Additionally, to the extent Plaintiff is alleging that one or more of the named Defendants have slandered him or defamed his character, these would be state law claims that Plaintiff could pursue in State Court. The Fourth Circuit has found that libel and slander claims are state law claims and, absent diversity jurisdiction, should be heard by state courts. See Wells v. Liddy, 186 F.3d 505, 518 n. 10 (4th Cir.1999); R.H. Bouligny, Inc. v. United Steelworkers of Am., 336 F.2d 160 (4th Cir.1964); see also Siegert v. Gilley, 500 U.S. 226, 233,(1991)("Defamation, by itself, is a tort actionable under the laws of most states, but not a constitutional deprivation."); Paul v. Davis, 424 U.S. 693, 712 (1976)(finding that "any harm or injury to [Plaintiff's interest in his reputation], even where as here inflicted by an officer of the State, does not result in a deprivation of any 'liberty' or 'property' recognized by state or federal law"). Thus, as to any allegations of a defamation claim, it would be one under state law and this court cannot consider it under its supplemental jurisdiction because Plaintiff has failed to state any other claim for which relief can be granted over which this court has original jurisdiction.
As to claims of retaliation, "In order to 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) (internal quotation marks and alterations omitted). Claims of retaliation by prisoners must "be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions." Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994). Plaintiff has sufficiently pleaded that he engaged in protected conduct. For the second element, Plaintiff was placed in segregation which can be considered action that can "chill a reasonable person's exercise of First Amendment rights." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500-01 (4th Cir. 2005). However, Plaintiff does not meet the third element. A plaintiff must show that the protected activity was the " 'but for' cause of the adverse action alleged."Savoy v. Bishop, 706 Fed. Appx 786 (4th Cir. 2017) quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 318 (4th Cir. 2006). Courts can infer causation when the adverse action occurs shortly after a plaintiff engaged in a protected activity. Id. citing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 253 (4th Cir. 2015). But, to refute such evidence, defendants can offer a legitimate and permissible reason for their actions to refute such evidence. Id. citing Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016). However, even after defendants have offered a legitimate reason, a plaintiff can still prevail on his claim if the evidence as a whole demonstrates that the proffered permissible reason is not the actual reason but merely a pretext. Id. citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). In this case, Plaintiff filed this action on November 14, 2017.Plaintiff was placed in segregation directly after being charged with the major infraction of passing contraband five months later on April 19, 2018, and a disciplinary hearing was held on April 23, 2018. Plaintiff was found guilty and sentenced to thirty days in segregation which is one of the possible sanctions listed in the policy for major violations. Plaintiff was charged, had a hearing, and was convicted for a major violation within days of the charge resulting in a sanction to maximum segregation for thirty days pursuant to the rules of the DCDC. Plaintiff did not appeal this conviction and has not denied that he passed contraband. Plaintiff has only alleged that the thirty days was too harsh of a sentence. As stated above, Plaintiff must present evidence to show "but for" his First Amendment protected activity, he would not have been placed in segregation. Defendants have shown that the reason for his placement in segregation was due to a major violation of passing contraband on April 19, 2018, after having a minor violation for transferring personal property to another inmate on March 21, 2018, and he was sentenced pursuant to policy for the DCDC. Therefore, Defendants have refuted the allegation of retaliation by offering a legitimate and permissible reason for their actions. Plaintiff has failed to satisfy the but-for causation requirement. Therefore, Plaintiff has failed to adduce evidence sufficient to satisfy the causation requirement of a First Amendment retaliation claim and summary judgment should be granted on this issue.
The filing of a lawsuit constitutes an exercise of [Plaintiff's] First Amendment rights to petition the government and access the courts. ACLU of Md., Inc. v. Wicomico Cty., 999 F.2d 780, 785 (4th Cir. 1993).
If Plaintiff is alleging retaliation as a result of filing a grievance, Plaintiff fails to meet all the elements of Martin v. Duffy. Plaintiff filed grievances in September and October of 2017. He was transferred to segregation in April 2018, after being charged with the contraband violation. While filing a grievance is considered protected by the First Amendment rights, Petitioner has failed to demonstrate that there was a causal relationship between this protected activity in September and/or October 2017, and the DCDC's conduct of moving him to maximum segregation after being charged and convicted of a major violation of passing contraband to another inmate in April 2018. See Gregg-El v. Doe, 2019 WL 92394 (4th Cir. 2019) (unpublished).
See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (finding an inference of causality only if "the temporal proximity [is] very close").
Policy states that a possible sanction for major violations include "Placement in disciplinary segregation fro not more than 15 days for a single finding or 30 days for aggregated offenses arising out of the same episode without a finding on a new charge." (ECF No. 62-2 at 17).
CONCLUSION
Based on the foregoing, it is recommended that Defendants' motion for summary judgment be granted (ECF No.34) and this action dismissed.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge January 24, 2019
Florence, South Carolina