King v. McPherson et al

Filing 54

ORDER RULING ON REPORT AND RECOMMENDATION adopting 42 Report and Recommendation, dismissing Plaintiff's Amended Complaint without prejudice and without issuance and service of process as to Defendants Swett, Brown, Patterson and Warden Reynolds. Signed by Honorable R Bryan Harwell on 12/30/2015. (jpet, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Curtis L. King,

)
)
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Plaintiff,
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v.
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Official McPherson, Lee Corr Inst; Sgt
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Boatwright, Lee Corr Inst; DHO Patterson, )
Lee Corr Inst; Warden Reynolds, Lee Corr )
Inst; Shake Down Team at Lee Corr Inst/ )
Turbeville; Capt. Pack, Turbeville Corr
)
Inst; Lt. Shannon, Turbeville Corr Inst;
)
Officer McElveen, Turbeville Corr Inst;
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Officer Barnes, Turbeville Corr Inst; DHO )
Brown, Turbeville Corr Inst; Lt. Siebel,
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Broad River Corr Inst; Capt. Washington, )
Broad River Corr Inst; W. Christopher
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Swett, appointed counsel; Sgt. Carlton Ashe;)
Sgt. Debra McFadden
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Defendants.
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____________________________________)

Civil Action No.: 0:15-2358-RBH-PJG

ORDER

Plaintiff Curtis L. King, currently incarcerated at Evans Correctional Institution in Bennettsville,
South Carolina and proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 against several
individuals alleging civil rights violations, including excessive use of force, cruel and unusual
punishment, unlawful search, and a violation of his expectation of privacy.
This matter is before the Court for review of the Report and Recommendation of Magistrate
Judge Paige J. Gossett filed on November 5, 2015. [ECF #42]. This matter was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(e). The Magistrate
Judge recommended that the case be summarily dismissed as to four of the named Defendants: Warden
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Reynolds, DHO Patterson, DHO Brown, and W. Christopher Swett. On November 18, 2015, Plaintiff
filed Objections to the Magistrate Judge’s Report and Recommendation. [ECF #47].
Background
Plaintiff filed his original Complaint on June 11, 2015, against several prison officials alleging
violations of his constitutional rights. [ECF #1]. On June 18, 2015, he filed an Amended Complaint
naming Christopher Swett as an additional Defendant. [ECF #5]. The Complaint was then appended
to the Amended Complaint as an attachment. [ECF #5-1]. According to the allegations in Plaintiff’s
Amended Complaint, Lt. Seibel used excessive force in violation of the Eighth Amendment by
discharging chemical munitions on September 22, 2010. [ECF #5-1, p. 3]. Similarly, Plaintiff alleges
Lt. Seibel, Sgt. Boatwright and Capt. Pack used excessive force in violation of the Eighth Amendment
by spraying Plaintiff with chemical munitions on March 25, 2013. [ECF #5-1, p. 5].1 He further alleges
Sgt. McFadden violated his constitutional rights by entering his cell unannounced and invading his
privacy, resulting in Plaintiff’s exhibitionism charge. [ECF #5-1, p. 4].
Plaintiff’s Amended Complaint also includes allegations that DHO Brown and DHO Patterson
denied him due process during three disciplinary hearings for exhibitionism, refusal to obey orders, and
possession of an unauthorized drug. [ECF #5-1, pp. 3,4,6,7]. Plaintiff alleges that Officer McElveen,
Capt. Pack, and Officer Barnes denied him access to food for refusing to wear a pink jumpsuit. [ECF
#5-1, p. 7]. Plaintiff alleges Official McPherson did not provide him a winter jacket “fit for cold
weather” in violation of the Eighth Amendment. [ECF #5-1, p. 7]. Finally, he alleges Capt. Washington
and the “shakedown team” violated his constitutional rights by subjecting him to repetitive anal cavity

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Plaintiff also attached the Incident Report for the M arch 25, 2013 incident where it appears Lt. Shannon and Sgt. Carlton
Ashe were also involved in this incident. [ECF #5-1, p. 13]. Plaintiff has named these two individuals as defendants, as well.

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searches. [ECF #5-1, p. 8]. In the Complaint and Amended Complaint, Plaintiff did not make any
factual allegations against Defendant Reynolds. However, in his objections, Plaintiff did allege Warden
Reynolds had personal involvement and exhibited deliberate indifference because he chose to “warrant”
the shake down team incident and in his response to complaints regarding the anal cavity searches.
[ECF #47, p. 2]. As correctly mentioned by the Magistrate Judge, while Plaintiff seeks both monetary
damages and release from confinement, the latter relief is not available under § 1983. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973).
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270–71 (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. 28 U.S.C. § 636(b)(1).
The district court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). However, the Court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate’s proposed
findings and recommendations.” Id.
Plaintiff filed his Amended Complaint in forma pauperis pursuant to 28 U.S.C. § 1915. Under
this statute, a district court may dismiss a case upon a finding that the action “fails to state a claim on
which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant
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who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In other words, a claim based on a
meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319, 327 (1989).
However, a pro se complaint is to be liberally construed and held to less stringent standards than
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94, (2007). This generous construction
is not without limits, and the Court is not required to construct claims from sentence fragments.
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Discussion
A. Summary Dismissal of W. Christopher Swett
According to Plaintiff’s Amended Complaint, W. Christopher Swett (“Defendant Swett”) was
appointed as his legal counsel on September 3, 2013. [ECF #5, p. 1]. In Plaintiff’s Amended
Complaint, he alleged Defendant Swett engaged in misconduct that interfered with Plaintiff’s right of
access to the courts under the First Amendment and resulted in a violation of due process under the
Fourteenth Amendment. [ECF #5, p. 2]. The Magistrate Judge recommended summary dismissal of
Defendant Swett because he is not a state actor amenable to suit under § 1983. Plaintiff objects to the
summary dismissal of Defendant Swett by alleging Defendant Swett’s actions constituted cruel and
unusual punishment, deliberate indifference, and hindered Plaintiff’s access to the courts, thereby
violating the First, Eighth, and Fourteenth Amendments. [ECF #47, p. 1]. Plaintiff did not object to the
Magistrate Judge’s finding that Defendant Sweet is not a state actor subject to suit under § 1983.
In order for Plaintiff to state a plausible claim under § 1983 against Defendant Swett, he must
demonstrate that Defendant Swett acted under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988). The Fourth Circuit has previously determined that court-appointed attorneys are entitled to
dismissal of § 1983 actions brought against them for want of state action. Hall v. Quillen, 631 F.2d
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1154, 1156, n.2 (4th Cir. 1980); see also Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (holding that
a public defender does not act under color of state law when performing traditional functions as counsel
in a criminal proceeding). In Plaintiff’s objections, he does not refute the Magistrate Judge’s finding
that Defendant Swett did not act under color of state law. Accordingly, this Court overrules any
objection by Plaintiff as to the dismissal without prejudice of Plaintiff’s claims against Defendant
Swett.2
B. Summary Dismissal of DHO Patterson and DHO Brown
Plaintiff alleges that DHO Patterson and DHO Brown violated his due process rights by their
involvement in three disciplinary hearings resulting in convictions. [ECF # 5-1, pp. 4-6]. The
Magistrate Judge recommended summary dismissal of claims against DHO Patterson and DHO Brown
because Plaintiff’s claim for damages is not cognizable under the holdings of Heck v. Humphrey, 512
U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997). Plaintiff objects to summary dismissal
of DHO Patterson and DHO Brown on the grounds that these two cases are inapplicable to his claim
that DHO Patterson and DHO Brown “prejudged” him prior to his disciplinary proceedings, thereby
resulting in an unfair outcome. [ECF #47, p. 3].
In the seminal case regarding the due process rights of prisoners, the Supreme Court held that
prisoners retained rights under the Due Process Clause of the Fourteenth Amendment, subject to
“restrictions imposed by the nature of the regime to which they have been lawfully committed.” Wolff
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In the Report and Recommendation, the Magistrate Judge noted that this Court should decline to exercise supplemental
jurisdiction under 28 U.S.C. § 1367(c) as to any cognizable state law legal malpractice claims against Defendant Swett.
Under 28 U.S.C. § 1367(a), district courts have supplemental jurisdiction over claims that are “so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under Article III of the United
States Constitution.” Plaintiff did not object or provide any argument suggesting this Court should exercise supplemental
jurisdiction over any potential state law claims against Defendant Swett. Further, this Court does not find that the allegations
contained in the Amended Complaint against Defendant Swett form part of the same case or controversy, or are otherwise
related to the remaining claims in this case. Accordingly, this Court declines to exercise supplemental jurisdiction over any
potential state claims.

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v. McDonnell, 418 U.S. 539, 556 (1974). In order to prevail on a procedural due process claim, an
inmate must demonstrate that he was deprived of “life, liberty, or property” by government action.
Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). Due process in the context of disciplinary
proceedings requires written notice to the inmate of the charges, opportunity for the inmate to call
witnesses and present documentary evidence, and a written statement by the finders of fact of the
evidence relied upon and the reasons for the disciplinary action taken. Baker v. Lyles, 904 F.2d 925, 929
(4th Cir. 1990).
Plaintiff did not specifically allege how DHO Patterson and DHO Brown’s actions deprived him
of “life, liberty or property” for any of the disciplinary proceedings discussed in the Complaint.
However, Plaintiff did attach the South Carolina Department of Corrections Disciplinary Report and
Hearing Record3 that evidences a loss of ninety good time days as punishment for a July 29, 2013
conviction of the possession of unauthorized drugs. [ECF #5-1, p. 35]. Assuming that the loss of good
conduct time constitutes a deprivation of a liberty interest, Plaintiff still fails to make a cognizable claim
under § 1983. The Supreme Court has previously held that in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction invalid, a plaintiff bringing a § 1983 claim must establish that the conviction
or sentence has been reversed, expunged, or otherwise declared invalid. Heck v. Humphrey, 512 U.S.
477, 487 (1994). A few years after the Supreme Court announced Heck, the Court considered whether
a claim for damages brought by a state prisoner challenging procedures resulting in a loss of good-time
credits was cognizable under § 1983. Edwards v. Balisok, 520 U.S. 641 (1997). In Balisok, the Supreme
Court concluded that a petitioner’s claim for money damages based on allegations of deceit and bias
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In Plaintiff’s Complaint, Plaintiff alleges that DHO Brown was involved in this disciplinary proceeding. [ECF # 1, p. 6].
Plaintiff does not allege any involvement with this hearing on the part of DHO Patterson.

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on the part of the prison proceedings that imply the punishment imposed is invalid is not cognizable
under § 1983. 520 U.S. at 648. Further, as the Magistrate Judge previously explained, a claim related
to administrative action resulting in the loss of good time credits is not cognizable under § 1983 because
it implicitly questions the validity of the conviction or duration of the sentence. See generally id. at 645646; see also Canzater v. Bittinger, No. 0:14-CV-3773-RBH, 2015 WL 2160242, at *2 (D.S.C. May
7, 2015).
Plaintiff alleges that the method by which the hearings were conducted evidences a bias on the
part of DHO Brown and DHO Patterson. However, Plaintiff does not allege facts that demonstrate his
loss of good conduct time has been overturned. Therefore, under the holdings of Heck and Balisok,
Plaintiff has failed to make a claim under § 1983. Plaintiff’s objections to the summary dismissal of
DHO Brown and DHO Patterson are overruled.
C. Summary Dismissal of Warden Reynolds
The Magistrate Judge recommended summary dismissal of Defendant Warden Reynolds because
Plaintiff did not allege any personal involvement by Warden Reynolds in the alleged violation of
Plaintiff’s constitutional rights in either his original Complaint or the Amended Complaint. [ECF #42,
p. 8]. In order to bring a claim against Warden Reynolds under § 1983, Plaintiff must show that “the
official charged acted personally in the deprivation of the plaintiff’s rights.” Vinnedge v. Gibbs, 550 F.2d
926, 928 (4th Cir. 1977); see generally Fed R. Civ. P. 8(a)(2) (requiring a “short and plain statement of
the claim”).
Plaintiff objected to the Magistrate Judge’s recommendation to summarily dismiss Warden
Reynolds and generally alleged in his objections that Warden Reynolds had personal involvement with
the shake down team entering the prison “without visual identification.” He appears to suggest that
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Warden Reynolds was involved in the complaint process related to Plaintiff’s opposition to the “order
to obey anal cavity search.” [ECF # 47, p. 2]. Plaintiff also alleges in his objections that Warden
Reynolds met with grievance coordinators and signed the grievance documents. [ECF #47, pp. 2-3].
Plaintiff does not otherwise provide any specific allegations against Warden Reynolds.
Plaintiff has previously filed an amendment to his original Complaint. [ECF #5]. In neither the
original Complaint nor the Amended Complaint did Plaintiff plausibly include facts alleging Defendant
Warden Reynolds was personally involved in the alleged violation of his constitutional rights. Plaintiff
has not subsequently filed an amendment to the Amended Complaint to include factual allegations
against Defendant Warden Reynolds, nor has he filed a motion requesting the Court’s leave to amend
his pleadings to add these factual allegations against Warden Reynolds.4

Plaintiff cannot use his

objections to plead new claims or cure factual defects against any existing claims as to Defendant
Warden Reynolds. See Backus v. Cox, No. 4:13-CV-00881-RBH, 2013 WL 5707328, at *2 (D.S.C. Oct.
18, 2013); see also 28 U.S.C. § 636(b)(1)(c). Accordingly, this Court finds that Plaintiff did not
plausibly assert personal involvement on the part of Warden Reynolds as to the alleged violation of
Plaintiff’s constitutional rights in his original Complaint or Amended Complaint.5 Plaintiff’s objections
to summary dismissal of Warden Reynolds are therefore overruled.

4

See Fed. R. Civ. P. 15(a)(2) (allowing a party to amend its pleadings with the court’s leave). Plaintiff is apparently aware
of the fact that in order to amend his complaint, he must file some sort of pleading. In this case, Plaintiff previously filed
a motion seeking to amend to add claims against additional defendants. [ECF #15]. This motion was denied pursuant to Fed
R. Civ. P. 20(a)(2). [ECF #25].

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Likewise, Plaintiff did not plausibly assert or suggest in the original Complaint or Amended Complaint that W arden
Reynolds, as a supervisory official, was aware of, or deliberately indifferent to, any constitutional risk of injury to Plaintiff.
See Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (explaining that a supervisory official may be liable if a plaintiff
shows “actual or constructive knowledge of a risk of constitutional injury, deliberate indifference to that risk, and ‘an
‘affirmative causal link’ between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff’”).

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Conclusion
The Court has thoroughly reviewed the entire record, including Plaintiff’s Complaint and
Amended Complaint, the Magistrate Judge’s Report and Recommendation, the Objection to the Report
and Recommendation, and the applicable law. For the reasons stated above and by the Magistrate
Judge, the Court overrules Plaintiff’s objections and adopts and incorporates the Report and
Recommendation of the Magistrate Judge as to Defendant Swett, Defendant DHO Patterson, Defendant
DHO Brown, and Defendant Warden Reynolds.
IT IS ORDERED that Plaintiff’s Amended Complaint is hereby DISMISSED without
prejudice and without issuance and service of process as to Defendant Swett, Defendant Brown,
Defendant Patterson, and Defendant Warden Reynolds.
IT IS SO ORDERED.

December 30, 2015

s/ R. Bryan Harwell

Florence, South Carolina

R. Bryan Harwell
United States District Judge

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