Opinion
C/A No. 5:18-cv-00749-RBH-KDW
08-13-2018
Shawn William Sharpe, Plaintiff, v. Dennis Bush; Alvin Grabber; Lisa Young, and Fuller, Defendants.
REPORT AND RECOMMENDATION
(partial summary dismissal)
This is a civil action filed pro se by a state prison inmate. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge 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). I. Factual Background
Shawn William Sharpe ("Plaintiff") is a prisoner in the South Carolina Department of Corrections ("SCDC") prison system. In his Second Amended Complaint, filed in response to this court's Order, ECF No. 30, Plaintiff alleges that his personal property was lost by prison personnel when he was transferred from one dorm to another at Broad River Correctional Institution. ECF No. 30 at 5. He alleges that among the lost personal property were irreplaceable photographs and legal documents required for his post-conviction relief ("PCR") application. Plaintiff alleges that he missed the PCR deadline as a result of the loss and that his PCR case was dismissed. Id. at 6. Plaintiff alleges that each Defendant had a part in the gathering up and storage of his property, but that they failed in their duties. Id . at 5-6. Plaintiff asserts that his First Amendment right to access to courts and his Fourth Amendment right "to feel secure in life liberty & property" were violated by the loss of his property. He seeks compensatory, nominal, and punitive damages. Id. at 4, 6. II. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Second Amended Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Even under this less stringent standard, the Second Amended Complaint filed in this case is subject to partial summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B). III. Discussion
Plaintiff's claim about the loss of his personal property is not properly before this federal court as a constitutional due-process claim pursuant to 42 U.S.C. § 1983 because Plaintiff has an adequate state-court remedy for such personal property issues under the South Carolina Tort Claims Act ("SCTCA"). See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Mora v. City of Gaithersburg, 519 F. 3d 216, 230-31 (4th Cir. 2008). The United States Court of Appeals for the Fourth Circuit has held that a federal district court should deny § 1983 relief if state law provides a plaintiff with a viable post-deprivation remedy for the loss of personal property—even if the deprivation was caused by an employee of the state, an employee of a state agency, or an employee of a political subdivision of a state. Yates v. Jamison, 782 F.2d 1182, 1183-84 (4th Cir. 1986). This holding applies regardless of whether the inmate's property loss was the result of negligence or an intentional act of the state employee or employees. Hudson v. Palmer, 468 U.S. at 533 (extending the holding of Parratt v. Taylor, 451 U.S. 527 (1981) to intentional deprivations of property); see also Bogart v. Chapell, 396 F.3d 548, 557 n.7, 561 (4th Cir. 2005) (South Carolina has meaningful post-deprivation remedies of "conversion/trespass to chattels" for personal property loss caused by county employees).
Under South Carolina law, Plaintiff's claims relating to lost or destroyed personal property are cognizable under the SCTCA. See S.C. Code Ann. §§ 15-78-10 through 15-78-220. The provisions of the SCTCA encompass both negligent and intentional losses of property proximately caused by a person employed by the State of South Carolina, a state agency, or political subdivision of the state while acting within the scope of his or her employment. See S.C. Code § 15-78-70(a) ("This chapter constitutes the exclusive remedy for any tort committed by an employee of a governmental entity."). Plaintiff's claims relating to his personal property are cognizable under the SCTCA because SCDC is a state agency and employees of SCDC are covered by the Act. Plaintiff can file a verified claim of his alleged personal property loss with SCDC under the Act. S.C. Code § 15-78-80(a)(1) ("A verified claim for damages under this chapter, setting forth the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, and the amount of the loss sustained may be filed . . . with the agency employing an employee whose alleged act or omission gave rise to the claim . . . ."). Accordingly, it is recommended that Plaintiff's Second Amended Complaint be partially dismissed to the extent that it asserts a Fourteenth Amendment due process claim.
Furthermore, to the extent that Plaintiff asserts that the loss of his property violated the Fourth Amendment, he fails to state a plausible claim against any Defendant. It is settled that prison inmates do not have privacy interests in personal property stored in their cell that are protected by the Fourth Amendment. The United States Supreme Court has held that "[s]ince the exigencies of prison life authorize officials indefinitely to dispossess inmates of their possessions without specific reason, any losses that occur while the property is in official custody are simply not redressable by Fourth Amendment litigation." Hudson v. Palmer, 468 U.S. at 538-39. Additionally, this court and other courts within the Fourth Circuit have held that the Fourth Amendment does not provide a remedy to a prisoner whose personal property was lost or destroyed by prison personnel. See, e.g., Godbey v. Simmons, No. 1:11CV704 TSE/TCB, 2014 WL 345648, at *5-6 (E.D. Va. Jan. 30, 2014), aff'd, 577 F. App'x 239 (4th Cir. 2014); McClurkin v. Byer, No. CA 2:13-1507-RMG, 2013 WL 3746027, at *5 (D.S.C. July 15, 2013), aff'd, 555 F. App'x 277 (4th Cir. 2014). Accordingly, it is recommended that the district court partially dismiss Plaintiff's Second Amended Complaint to the extent that it asserts a Fourth Amendment claim.
There are sufficient allegations in the Second Amended Complaint of actual injury arising from the loss of Plaintiff's property and of Defendants' personal involvement in the property loss. Therefore, the Second Amended Complaint should be served on all Defendants with directions that they respond to the First Amendment access-to-court claim only. IV. Recommendation
Accordingly, because the deficiencies in Plaintiff's Second Amended Complaint relating to the due process and Fourth Amendment claims cannot be cured through amendment, it is recommended that the district court partially dismiss the Second Amended Complaint in this case with prejudice. See Brown v. Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
IT IS SO RECOMMENDED. August 13, 2018
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).