Waters v. Rowe et al

Filing 16

ORDER RULING ON 10 REPORT AND RECOMMENDATION. The Report is incorporated herein by reference and the plaintiffs objections are overruled. Accordingly, this action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 9/10/2014. (gmil)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Curtis Waters,

)
)
Plaintiff,
)
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v.
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Ernest Rowe, Disciplinary Hearing Officer;
)
Angela Brown, Counsel Substitute,
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Defendants.
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______________________________________ )

C/A No. 0:14-745-JFA-PJG

ORDER

The pro se plaintiff, Curtis Waters, brings this action pursuant to 42 U.S.C. § 1983,
against various employees of the South Carolina Department of Corrections for claims
arising out of disciplinary charges made against him.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation and opines that this action should be summarily dismissed. The Report
sets forth in detail the relevant facts and standards of law on this matter, and the court
incorporates such without a recitation.
The plaintiff was notified of his right to file specific objections to the Report and
Recommendation and he has timely done so. For the reasons which follow, the court agrees
with Magistrate Judge that dismissal without prejudice is appropriate.
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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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According to his complaint, the plaintiff contends that defendant Brown, who was
appointed as his substitute counsel, failed to obtain documentary evidence and proposed
questions for the plaintiff’s prison disciplinary hearing. Plaintiff contends that this inaction
denied the plaintiff his right to examine and present evidence at the hearing and prejudiced
his ability to prepare and present a defense. The plaintiff further alleges that defendant
Rowe, the Disciplinary Hearing Officer (“DHO”), instructed defendant Brown not to rely on
plaintiff’s questions of his accuser, thus denying plaintiff the right to cross-examine his
accuser at the hearing.
Plaintiff was charged with escape, threatening to inflict harm, and sexual misconduct.
He was found guilty at his disciplinary hearing and was sanctioned with 720 days of
disciplinary detention; 1,440 days of canteen restriction; and 1,440 days of telephone and
visitation restriction.
Plaintiff contends that the conditions in segregated confinement constitute an “atypical
and significant hardship in relation to the ordinary incidences of prison life” and that he is
unable to maintain his hygiene, interact with counselors, or receive prompt medical attention
for his HIV positive status. He seeks monetary damages.
As the Magistrate Judge notes, disciplinary proceedings which implicate a protected
liberty interest demand due process. See Wolff v. McDonnell, 418 U.S. 539 (1974). The
Supreme Court held under Wolff, that where a disciplinary hearing affects a liberty interest,
inmates must received: (1) advance written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and correctional goals, to call witnesses
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and present documentary evidence in his defense; (3) a written statement by fact finders of
the evidence relied on and the reasons for the disciplinary action; and (4) a fair and impartial
tribunal. Id. at 563–67. To prevail on a procedural 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 (1995).
Here, the plaintiff alleges a loss of canteen, visitation, and telephone privileges—none
of which resulted in an increase in the sentence imposed. Thus, none of these restrictions
implicate a protected liberty interest.
The plaintiff asserts that because he is HIV positive, that placement in segregated
confinement is an atypical and significant hardship that creates a liberty interest. He
complains of a small, cold cell; limited recreation, showers, property and hygiene items;
limited contact with counselors; limited participation in programs; and limited access to
prompt medical attention. This court agrees with the Magistrate Judge that plaintiff cannot
demonstrate an atypical or significant hardship caused by the sanctions imposed from the
disciplinary hearing.
Finally, the Magistrate Judge opines that to the extent plaintiff may be alleging an
Eighth Amendment violation, the plaintiff does not assert any personal involvement by the
defendants in relation to the purported restricted prison conditions, nor does plaintiff allege
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that his placement in segregation has resulted in the deprivation of his basic human needs.
Thus, any such Eighth Amendment claims are subject to summary dismissal. This court
agrees.
In his objections to the Report and Recommendation of the Magistrate Judge, plaintiff
asserts that his confinement “without access to conditions and treatment necessary for an
HIV positive prisoner is a ‘novel situation’ and should satisfy Sandin’s ‘atypical and
significant hardship.” Plaintiff further contends that after service of 720 days in segregated
confinement, he will have to serve an additional minimum of 18 months in security detention
for his escape charges. This, plaintiff asserts, will exacerbate his mental health and medical
condition. Finally, plaintiff claims that when he was denied parole on May 15, 2014 due to
an unfavorable institutional record or prison disciplinary record, this affected the possibility
of his release on parole.
The court is unpersuaded by these arguments. Whereas in years past, an inmate who
tested HIV positive might have been considered a “novel situation,” that is not the case
today. The court disagrees with the plaintiff that his condition is “atypical and significant.”
He has made no showing that he has been denied medical treatment and the other rigors of
segregated confinement do not amount to an unconstitutional violation.
After carefully reviewing the applicable laws, the record in this case, the Report and
Recommendation, and the objections thereto, this court finds the Magistrate Judge’s
recommendation fairly and accurately summarizes the facts and applies the correct principles
of law. The Report is incorporated herein by reference and the plaintiff’s objections are
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overruled.
Accordingly, this action is dismissed without prejudice and without issuance and
service of process.
IT IS SO ORDERED.

September 10, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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