Tolen v. Byars et al

Filing 49

ORDER ADOPTING 45 REPORT AND RECOMMENDATION, granting Defendants' Motion for Summary Judgment 41 . Plaintiff's claims are dismissed with prejudice. Signed by Honorable R Bryan Harwell on 11/27/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Frank Tolen, Jr., #246966,

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)
Plaintiff,
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v.
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Director Byars; David M. Tatarsky; )
Warden M. McCall; Mr. Steven
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McCarthy, Canteen Manager,
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Defendants.
)
)

Civil Action No.: 1:11-cv-02776-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Shiva V. Hodges.1 Defendants filed a motion for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In her R&R, the
Magistrate Judge recommends that the Court grant Defendants’ motion for summary judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Frank Tolen, a state prisoner proceeding pro se, filed this action pursuant to 42
U.S.C. § 1983, alleging that his identification card, which is used by inmates to purchase items from
the prison canteen and which he was required to wear at all times, was stolen along with his jacket
while he was working in the cafeteria as a dining room worker. He claims he had placed the jacket
and identification card in a secured area and that he informed his supervisor of their theft.

1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling. The Magistrate Judge’s review of Plaintiff’s
complaint was conducted pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and
1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); but see Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).

Subsequently, according to the complaint, another inmate charged $124.79 worth of items from the
canteen to the Plaintiff’s account.
Plaintiff asserts that prison officials were negligent in failing to deactivate his identification
card immediately after the theft of the card was reported, and before the canteen purchase, and that
Defendant McCarthy violated South Carolina Department of Corrections (“SCDC”) policies in
permitting another inmate to use Plaintiff’s card at the canteen. His claims against Defendants
Byars, Tatarsky,2 and McCall regard their failure to enforce SCDC policies and properly supervise
their subordinates.3 Plaintiff alleges he was denied due process and equal protection when he was
not reimbursed for the loss, even after prison officials reclaimed the items purchased from the
canteen. He seeks reimbursement of the $124.79 plus costs in this action. Compl., ECF No. 1.
Defendants filed a motion for summary judgment on July 25, 2012. Mot. for Summ. J., ECF
No. 41. They contend that Plaintiff failed to state a constitutional claim under either the Due
Process Clause or the Equal Protection Clause.

They included an affidavit from Defendant

McCarthy attesting that an operator at the canteen accepted Plaintiff’s card before he was notified
by Plaintiff of the theft. McCarthy Aff., ECF No. 41-2. Furthermore, Defendant McCall submitted
an affidavit stating that inmates were informed that they must keep their identification cards on
them at all times and to report stolen cards to Linda Seneca, who was not aware of the theft of
Plaintiff’s card until the following day. McCarthy Aff., ECF No. 41-3. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advised Plaintiff of the summary judgment
procedures and the possible consequences if he failed to respond adequately to Defendants’ motion.

Plaintiff’s claim against Defendant Tatarsky, who is legal counsel for SCDC, arises from
Tatarsky’s handling of his grievance.
3
Plaintiff also brings an Eighth Amendment claim against Defendant McCall.
2

2

Plaintiff filed a timely response to Defendants’ motion on August 2, 2012. Resp. to Defs.’ Mot. for
Summ. J., ECF No. 44. He provided no evidentiary support to his response.
The Magistrate Judge issued her R&R on August 31, 2012, R&R, ECF No. 45, and Plaintiff
filed timely objections to the R&R on September 14, 2012, Pl.’s Objs., ECF No. 47.
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 R&R 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 her with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). 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. Moreover, in the absence of
objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “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, 315 (4th
Cir. 2005).
DISCUSSION
The Magistrate Judge recommends granting Defendants’ motion for summary judgment.
Specifically, she concludes that Plaintiff fails to state a constitutional claim arising out of the theft

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of funds held in his prison trust account. R&R 4-5. In his objections, Plaintiff points out that
Defendants were aware that his identification card was missing and did nothing to prevent his trust
funds from being stolen, and that their actions established a clear breakdown of SCDC policy. He
argues that no other remedy existed to prevent his stolen identification card from being used to steal
his trust funds and that he should not be held liable for another inmate’s actions. Thus, he
concludes, he is entitled to a reimbursement by SCDC because they deprived him of a property
interest. Pl.’s Objs. 1-3.
The Court finds no error in the Magistrate Judge’s recommendation. Notwithstanding the
fact Plaintiff’s objections largely rehash the allegations of his complaint, a de novo review by this
Court reveals no merit to Plaintiff’s claim that his due process rights were violated.4 The Due
Process Clause of the Constitution provides no basis for liability stemming from what, at most,
amounts to the mere negligence of prison officials, as alleged by Plaintiff in his complaint.5 See
Daniels v. Williams, 474 U.S. 327, 332 (1986) (“To hold that injury caused by such conduct is a
deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old
principle of due process of law.”); Davidson v. Cannon, 474 U.S. 344, 348 (1986). Contrary to
Plaintiff’s objection, adequate post-deprivation remedies are available in state tort law. Daniels, 474
U.S. at 332 (“Our Constitution . . . does not purport to supplant traditional tort law in laying down
rules of conduct to regulate liability for injures that attend living together in society.”).

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Plaintiff does not object to the Magistrate Judge’s conclusion that he “provide[d] no allegations
that he was treated differently than other similarly-situated inmates” and that “his claim of an equal
protection violation must fail.” R&R 5.
5
Although Plaintiff alleges “deliberate indifference” in his complaint, the legal conclusion is not
supported by any factual allegations in his complaint. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).
4

Additionally, the Court cannot find that Plaintiff, in his response to Defendants’ motion for
summary judgment, has created a genuine dispute of any fact relevant to a constitutional claim. Fed.
R. Civ. P. 56(a), (e). Plaintiff presents no evidence with his response to dispute evidence in the
record that Defendant McCarthy was not the one who made the canteen sale, McCarthy Aff. 1, or
that Defendant McCall believed Plaintiff had acted negligently in following SCDC policy, McCall
Aff. 2. Plaintiff’s objections, therefore, are overruled.
CONCLUSION
The Court has thoroughly analyzed the entire record, including the R&R, objections to the
R&R, and the applicable law. For the reasons stated above and by the Magistrate Judge, the Court
hereby overrules all of Plaintiff’s objections and adopts the Magistrate Judge’s R&R.
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment is
GRANTED, and Plaintiff’s claims are DISMISSED with prejudice.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
November 27, 2012
Florence, South Carolina

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