Brown v. Bush et al

Filing 31

ORDER ADOPTING 14 REPORT AND RECOMMENDATION dismissing Plaintiff's complaint without prejudice as to Willie Davis, Sharon Patterson, Dennis Bush and Thomas Commander. Signed by Honorable Margaret B Seymour on 7/30/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Jemol H. Brown,
Plaintiff,
v.
Warden Dennis Bush; Deputy Warden
Willie Davis; Off. Sharon Patterson;
Off. Roy Miller; Captain Thomas
Commander;
Defendants.

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Civil Action No. 0:15-0017-MBS

ORDER AND OPINION

Plaintiff Jemol H. Brown (“Plaintiff”), proceeding pro se and in forma pauperis, brings this
action against Defendants pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff is an inmate at Lee
County Correctional Institution. ECF No. 1. Plaintiff alleges that Defendant Roy Miller (“Miller”)
became angry with Plaintiff and sprayed chemical munitions in his face on August 26, 2013. ECF
No. 1 at 3. Miller then charged Plaintiff with striking an employee. ECF No. 1 at 3. Plaintiff
alleges that the hearing officer, Defendant Officer Sharon Patterson (“Patterson”), found Plaintiff
guilty of striking an employee. ECF No. 1 at 3. Plaintiff contends that Patterson reached a guilty
finding despite obvious discrepancies in Miller’s testimony. ECF No. 1 at 3. Plaintiff also alleges
that Patterson denied Plaintiff the opportunity to present witness statements and testimony at the
disciplinary hearing on September 20, 2013. ECF No. 1 at 3. Subsequently, Plaintiff alleges that
Defendant Deputy Warden Willie Davis (“Davis”) placed Plaintiff in secure detention pursuant to
the disciplinary conviction and kept Plaintiff in secure detention five months longer than initially

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required. ECF No. 1 at 3-4. Plaintiff asserts that he submitted a request for release to Defendant
Captain Thomas Commander (“Commander”) and alleges that Commander responded to him in an
unprofessional manner in order to intentionally inflict emotional distress on Plaintiff. ECF No. 1
at 4. Finally, Plaintiff alleges that Defendant Warden Dennis Bush (“Bush”) should be held liable
for “[turning] a blind eye” to Plaintiff’s grievances stemming from the August 2013 incident. ECF
No. 1 at 4. As a result of the aforementioned incidents, Plaintiff alleges that his Fourteenth
Amendment right to due process was violated by Defendants. ECF No. 1. Plaintiff seeks damages
and injunctive relief. ECF No. 1 at 5.
This matter is before the court pursuant to 28 U.S.C. § 1915(e)(2)(B) (2006), which requires
the court to dismiss civil actions filed in forma pauperis if they are frivolous or fail to state a claim
upon which relief can be granted. In accordance with 28 U.S.C. § 636(b) (2012) and Local Civil
Rule 73.02, D.S.C., the matter was referred to United States Magistrate Judge Paige J. Gossett for
a Report and Recommendation. The Magistrate Judge filed a Report and Recommendation on
February 12, 2015, recommending that the complaint be summarily dismissed without prejudice and
without service of process as to Defendants Bush, Davis, Patterson, and Commander. ECF No. 14.
That same day, Magistrate Judge Gossett issued an order authorizing service of process as to
Defendant Miller. ECF No. 15. Plaintiff filed objections to the Report and Recommendation on
February 27, 2015. ECF No. 20.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight and the responsibility for making a final determination remains with this
court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo
review of any portions of the Report and Recommendation to which a specific objection is made.

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Id. The district court need not conduct a de novo review when a party makes only general and
conclusory objections that do not direct the court to a specific error in the Magistrate Judge’s
proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
The court may accept, reject, or modify, in whole or in part, the recommendation made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
Plaintiff’s objections do not direct the court to a specific error in the Magistrate Judge’s
Report and Recommendation. Orpiano, 687 F.2d at 47-48. Nevertheless, the court has conducted
a de novo review of the issues in this case and concludes that the Magistrate Judge has properly
applied the applicable law. The court specifically reviewed those conclusions of the Magistrate
Judge that were mentioned in Plaintiff’s objections.
The Magistrate Judge properly analyzed Plaintiff’s claims pursuant to 42 U.S.C. § 1983.
Section 1983 is used to vindicate federal rights and impose civil liability on those who act under the
color of the law to deprive citizens of their rights. See Baker v. McCollan, 443 U.S. 137, 140
(1979). In applying the section 1983 analysis, the Magistrate Judge properly concluded that
Plaintiff’s claims alleging that his due process rights were violated at different stages of the prison
grievance procedure are not cognizable under section 1983. First, Plaintiff’s allegation that
Defendant Bush failed to grant Plaintiff a grievance procedure is not cognizable. Defendant Bush
could not violate Plaintiff’s Fourteenth Amendment right to due process as alleged since a prisoner
has no constitutional right to a grievance procedure. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994) (“[T]he Constitution creates no entitlement to grievance procedures or access to any such
procedure voluntarily established by a state.”); Daye v. Rubenstein, 417 F. App’x 317, 319 (4th Cir.
2011) (unpublished) (“Prisoners do not have a constitutional right of access to the grievance

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process.”). In his objections, Plaintiff contends that he has a right to a grievance procedure because
grievance procedures are a prerequisite to pursuing a remedy in federal court. ECF No. 20 at 1-2.
Federal regulations that create an administrative remedy do not themselves create a liberty interest
in access to that procedure. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Furthermore,
Plaintiff is not required to exhaust administrative remedies to access relief in the federal courts
pursuant to section 1983.

See Heck v. Humphrey, 512 U.S. 477, 480 (1994). Plaintiff’s claim

against Defendant Bush fails because it is not cognizable under section 1983, not because Plaintiff
has failed to exhaust his administrative remedies through the grievance process.
Second, Plaintiff’s claim against Defendant Patterson for her conduct in administering the
disciplinary hearing is barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok,
520 U.S. 641 (1997). Plaintiff alleges that Patterson’s actions deprived him of good conduct time,
which is a protected liberty interest that requires due process. See Wolff v. McDonnell, 418 U.S. 539
(1974); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). However, Plaintiff’s claim for
damages is not cognizable under section 1983 where the success of the action would implicitly
question the validity of the disciplinary determination, unless Plaintiff can demonstrate that the
disciplinary action has been previously invalidated. See Heck, 512 U.S. at 487; Edwards, 520 U.S.
at 648 (1997) (holding that a “claim for declaratory relief and money damages, based on allegations
of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the
punishment imposed, is not cognizable under § 1983.”). Because Plaintiff has not demonstrated that
this disciplinary action has been reversed or invalidated through administrative action or in the state
courts, the Magistrate Judge properly determined that Plaintiff’s due process claim against
Defendant Patterson is barred by the holdings of Heck and Edwards. Finally, Plaintiff’s claims

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against Defendants Davis and Commander for failing to release him from secure detention do not
implicate a protected liberty interest. See Sandin v. Conner, 515 U.S. 472 (1995) (noting that the
defendant’s placement in solitary confinement did not implicate a protected liberty interest under
the Due Process Clause). A prisoner has no constitutional right to be housed at a particular custody
or security status. See Slezak v. Evatt, 21 F.3d 590, 595 (4th Cir. 1994) (noting that the Constitution
does not vest a liberty interest in inmates receiving a particular security status as long as the
conditions and degree of confinement are within the sentence imposed). Because Plaintiff’s
placement in secure detention did not implicate a protected liberty interest and Plaintiff has not
demonstrated that his detention violated any constitutional right, the Magistrate Judge properly
concluded that claims against Defendants Davis and Commander are not cognizable under section
1983.
Additionally, the Magistrate Judge properly concluded that Plaintiff’s state law claims
against Defendants for negligence and intentional infliction of emotional distress are subject to the
provisions of the South Carolina Tort Claims Act (“SCTCA”). The SCTCA is the exclusive remedy
for individuals suing government employees, unless “it is proved that the employee’s conduct was
not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to
harm, or a crime involving moral turpitude.” See S.C. Code Ann. §§ 15-78-70(a)-(b) (partially
waiving sovereign immunity). The SCTCA does not waive immunity when a governmental
employee exercises discretion or judgment that is within the scope of the employee’s duties. S.C.
Code Ann. § 15-78-60(5). Where sovereign immunity is not waived, the State cannot be sued in
federal court because it does not consent to suit in federal court or in a court of another state. S.C.
Code Ann. § 15-78-20(e). In his objections, Plaintiff alleges that Defendants acted outside of the

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scope of their official duties. Absent an allegation of malice, the actions that Defendants allegedly
took to discipline Plaintiff were within the scope of their official duties. See Landman v. Peyton,
370 F.2d 135, 138 n. 2 (4th Cir. 1966) (use of tear gas was within officer’s disciplinary authority);
Segarra v. McDade, 707 F.2d 1301, 1305 (4th Cir. 1983) (decision to omit testimony of a witness
in a disciplinary hearing is within disciplinary hearing committee’s discretion); Phillips v. S.C. Dep’t
of Corrections, No. 8:10-1331, 2010 WL 2756910, at *2 (D.S.C. June 17, 2010) (the placement of
an inmate in a particular institution or unit are discretionary actions). Because the decisions to omit
testimony at a disciplinary hearing and to maintain a prisoner in solitary confinement are within the
discretionary authority of prison officials, Plaintiff’s state law claims against Defendants Bush,
Davis, Patterson, and Commander cannot be maintained. Although using chemical munitions to
discipline an inmate is within the discretionary authority of a prison official, Plaintiff alleged that
Defendant Miller acted maliciously when he sprayed Plaintiff with mace. As a result, Defendant
Miller’s immunity from suit under the SCTCA may not be waived. Thus, the Magistrate Judge
properly concluded that the SCTCA bars Plaintiff’s suit in federal court against Defendants Bush,
Davis, Patterson, and Commander.
Based upon the foregoing, the court adopts and incorporates herein by reference the
Report and Recommendation of the Magistrate Judge. Accordingly, because Plaintiff failed to
state a claim upon which relief can be granted as to Defendants Bush, Davis, Patterson and
Commander, Plaintiff’s complaint is DISMISSED without prejudice as to those Defendants
pursuant to 28 U.S.C. § 1915(e)(2)(B). The within action is recommited to the Magistrate Judge
for further pretrial handling.
IT IS SO ORDERED.

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/s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Court Judge

July 30, 2015
Columbia, South Carolina

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