Rice v. Cohen et al
ORDER adopting 76 Report and Recommendation; granting Defendants' 36 Motion for Summary Judgment; granting Defendants' 67 Amended Motion for Summary Judgment; and dismissing case with prejudice. Signed by Honorable Richard M Gergel on 3/3/2017. (mwal)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Vincent Jermaine Rice,
Civil Action No. 0:15-286l-RMG
ORDER AND OPINION
Levern Cohen, Warden; Ernest Rome,
Hearing Officer, SC Dept ojCorrections,
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary judgment for Defendants. For the reasons set forth below, the
Court adopts the Report and Recommendation and grants summary jUdgment for Defendants.
Plaintiff Vincent Rice was a prisoner in Ridgeland Correctional Institution in June 2013,
when he was accused of participation in a prison riot. A disciplinary hearing was held on July 17,
2013. Defendant Ernest Rowe (identified as "Ernest Rome" in the case caption) presided. During
the hearing, Plaintiff requested that Officers Bruno and Andrews be called as witnesses to testifY
that Plaintiff was locked in his cell during the riot. Officer Rowe denied the request. At the
conclusion of the hearing, Rice was found guilty, placed in disciplinary detention, and sanctioned
with the loss of 170 days of good time credit, a restitution payment, and the loss of canteen, phone,
and visitation privileges.
Plaintiff appealed the decision of the hearing officer to the Warden, Defendant Levern
Cohen, by filing a Step 1 grievance. Warden Cohen denied Plaintiffs Step 1 grievance. Plaintiff
continued the administrative process by filing a Step 2 grievance and, after that grievance was
denied, by appealing to the South Carolina Administrative Law Court. On September 18, 2014,
the Administrative Law Court remanded the matter for a second disciplinary hearing, finding that
Plaintiffs procedural due process rights were violated when he was not given the opportunity to
present his requested witnesses. At the second disciplinary hearing, held on January 29, 2015,
Plaintiff was found not guilty of participating in the June 2013. Plaintiff, however, alleges that
decision does not rectify the additional time he spent in disciplinary detention or his loss of good
time credits, which allegedly extended his release date by 83 days. Defendants dispute that
assertion, pointing to Plaintiffs other criminal sentences and his extensive record of disciplinary
On July 22, 2015, Plaintiff filed the present action against Defendants in their personal
capacities, alleging they violated his constitutional due process rights. The Court also construes
the complaint as asserting a state law claim for outrage. On January 1,2017, the Magistrate Judge
recommended summary judgment for Defendants. (Dkt. No. 76.) Plaintiff has not objected to the
Report and Recommendation.
Report and Recommendation of the Magistrate Judge
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, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id Where the plaintiff fails to file any specific objections, "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," see Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby
v. Davis, 718 F.2d 198 (4th Cir. 1983).
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities in
favor ofthe nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat 'I Red Cross, 101 F.3d 1005,
1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317,323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that
give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do
not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case.
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v.
CSXTransp., Inc., 190 F.3d 285,287 (4th Cir. 1999)).
Section 1983 Claims
Prisoners have a constitutional right to due process in disciplinary hearings that implicate
protected liberty interests such as the loss of good time credits. Such disciplinary hearings must
allow prisoners (I) advance written notice of charges; (2) opportunity to call witnesses and present
documentary evidence; (3) a written statement by the fact finders of the evidence relied on and the
reasons for the disciplinary action; and (4) a fair and impartial tribunal. WolfJv. McDonnell,418
U.S. 539, 563-67 (1974). Plaintiff alleges Officer Rowe violated those clearly established rights
when he denied Plaintiff s request to present two witnesses. Defendants respond that Officer Rowe
had held Plaintiff waived his right to call those witnesses when he failed to call them by form
submitted at least 24 hours in advance, as required by prison policy. (Dkt. No. 67-2" 8-11.)
Instead, Plaintiff made an oral request for those witnesses in the middle of the hearing. (Dkt. No.
76 at 9.) Warden Cohen, in his Step 1 grievance review, affirmed the decision that Plaintiff waived
his right to call those witnesses. (Dkt. No. 67-2" 11-12.)
Plaintiff argues Defendants are estopped from disputing the South Carolina Administrative
Law Court's determination "that the [South Carolina Department of Corrections] failed to provide
[Rice] with procedural due process sufficient to support the disciplinary conviction because [Rice]
was not given the opportunity to present material witnesses that he requested to be present at the
hearing." (Dkt. No. 1-1 at 7.) The Court ordered supplemental briefing on the issue of estoppel.
(Dkt. No. 47.) After review of the supplemental briefing, Magistrate Judge determined collateral
estoppel and res judicata do not apply in this case. (Dkt. No. 76 at 5.) The Court agrees.
Defendants in their individual capacities were not parties to the appeal to the Administrative Law
Court and they did not have a full and fair opportunity to litigate the issues in that administrative
Qualified immunity shields governmental officials performing discretionary functions
from liability for damages to the extent that their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
Whether a violated right was clearly established is
determined "in light ofthe specific context ofthe case, not as a broad general proposition." Parrish
v. Cleveland, 372 F.3d 294,301 (4th Cir. 2004). A right is clearly established only ifit was "clear
to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation
he confronted." Id (citations and internal quotation marks omitted). The "salient question" "'is
whether the state of the law' at the time of an incident provided 'fair warning' to the defendants
'that their alleged [conduct] was unconstitutional.'" Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002».
The Magistrate Judge determined that a reasonable officer in Officer Rowe's position
would not have known that requiring Plaintiff to identify his witnesses in advance of the hearing
was unconstitutional. (Dkt. No. 76 8-9.) The Court agrees. An absolute refusal to permit Plaintiff
to call witnesses in his defense likely would have violated his clearly established rights, but the
law did not provide fair warning to Officer Rowe that enforcement of the requirement that
prisoners identify witnesses in advance would violate Plaintiff's constitutional rights. To the
contrary, judicial proceedings routinely require advance disclosure of witnesses. Officer Rowe
therefore is entitled to qualified immunity from Plaintiff's claims under § 1983.
Warden Cohen is alleged only to have denied Plaintiff's Step 1 grievance challenging the
outcome of the first disciplinary hearing. He is entitled to qualified immunity for the same reason
as Officer Rowe. Further, Plaintiff fails to state a claim against Warden Cohen because a prisoner
has no constitutional right to a prison 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 the state.").
The Court therefore grants summary jUdgment for Defendants on Plaintiffs claims under
South Carolina tort claims
Plaintiff also alleges a claim of outrage or intentional infliction of emotional distress "as a
result ofthe Defendants['] actions." (Dkt. No.1 at 6.) The Magistrate Judge properly recommends
that claim be dismissed as barred by the South Carolina Tort Claims Act, S.C. Code Ann. §§ 15
78-10, et seq. The scope of Defendants' liability as employees working within the scope of their
employment for a governmental entity is defined by the Act, which excludes damages from "the
intentional infliction ofemotional harm." S.c. Code Ann. §§ 15-78-30(f), 15-78-60(17); see Ward
v. City o/North Myrtle Beach, 457 F. Supp. 2d 625, 647 (D.S.C. 2006). Plaintiff has produced no
evidence suggesting Defendants acted outside the scope oftheir employment. The Court therefore
grants summary judgment for Defendants on Plaintiffs claim for emotional distress.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge (Dkt. No. 76) as the Order of the Court and GRANTS Defendants' motion for
summary judgment (Dkt. No. 36) and Defendants' amended motion for summary judgment (Dkt.
AND IT IS SO ORDERED.
Richard Mark G gel
United States District Court Judge
Charleston, South Carolina
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