Stepney v. Ward et al

Filing 18

ORDER accepting 13 Report and Recommendation. This action is dismissed with prejudice and without issuance and service of process. Signed by Honorable J Michelle Childs on 7/15/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Inmate Mr. Wade Stepney, Jr.,

)
)
Plaintiff,
)
v.
)
)
Mr. Robert E. Ward, SCDC Deputy
)
Director; Mr. Michaiel Mathews, SCDC
)
Classification Director; Ms. Susan
)
Montgomer, SCDC Leg/GOV Relations;
)
Ms. Livington, SCDC KCI R&E
)
Classification; Hon. Sen. Robert D. Ford, )
Correction Penology,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 1:12-cv-03411-JMC

ORDER AND OPINION

Plaintiff Wade Stepney, Jr. (“Plaintiff”), filed this pro se action pursuant to 42 U.S.C.
§ 1983. Plaintiff alleges he has been subjected to overcrowded living conditions at the South
Carolina Department of Corrections (“SCDC”) due to the actions and failures of Defendants Mr.
Robert E. Ward, Mr. Michaiel Mathews, Ms. Susan Montgomer, Ms. Livington, and Hon. Sen.
Robert D. Ford (collectively “Defendants”). (ECF No. 1 at 4.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(g) (D.S.C.), the
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial handling.
On March 26, 2013, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending the court dismiss the case without prejudice and without issuance and service of
process.

(ECF No. 13.)

This review considers Plaintiff’s Objections to the Report

(“Objections”) filed April 3, 2013 (ECF No. 15) and his Supplement to the Objections filed July
29, 2013 (“Supplement”). (ECF No. 17.) For the reasons set forth herein, the court ACCEPTS
the Magistrate Judge’s Report with the exception that the court DISMISSES this action (ECF

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No. 1) with prejudice and without issuance and service of process.
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The facts are discussed in the Report. (See ECF No. 13.) The court concludes, upon its
own careful review of the record, that the Magistrate Judge’s factual summation is accurate and
incorporates it by reference. The court will only recite herein facts pertinent to the analysis of
Plaintiff’s Objections and Supplement.
Plaintiff alleges that he was assigned to a two-man cell at Kirkland Correctional
Institution (“KCI”) pursuant to his conviction and sentence in state court. (ECF No. 1 at 3.)
Plaintiff asserts he was not given a bed in his cell at KCI and slept on a mattress on the floor.
(Id.) Subsequently, Plaintiff states he was classified as a non-violent inmate and transferred to
Perry Correctional Institution (“PCI”), where he allegedly resided with another inmate in a cell
designed for one person.1 (Id.) Plaintiff contends he has been subjected to overcrowded living
conditions while in the custody of SCDC. (Id.)
Plaintiff claims that Robert E. Ward, SCDC Deputy Director, “failed to implement or
improvise and enforce the Emergency Overpower Act’s EPI and EPII to prevent and to control
SCDC facilities and entities crowding and overcrowding of violent and non-violent prison
inmates.” (Id. at 4.) The Complaint also alleges Michaiel Mathews (sic), SCDC Classification
Director, “failed to supervise SCDC classification personnel, who have conspired with local
county detention centers to deliberate[ly] treat SCDC prison inmates indifferent[ly]” and house
violent and non-violent inmates together due to overcrowding. (Id.) Plaintiff further claims that

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In his Complaint, Plaintiff states he was classified as a non-violent inmate and then transferred
to PCI. (ECF No. 1 at 3.) In his Objections, Plaintiff states he was a “non-violent SCDC prison
inmate” later classified as “a violent offender and transferred to Level 3 SCDC PCI.” (ECF No.
15 at 1.) While Plaintiff’s classification is ambiguous due to his contradictory statements, it
ultimately is not decisive here.

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Defendant Livington, a classification employee at KCI, conspired to keep Plaintiff in “Level 3
custody” by transferring him to PCI. (Id.) Additionally, Plaintiff alleges Susan Montgomer,
SCDC Leg/Gov Relations Lobbyist, failed “to address the SCDC crowding and overcrowding or
communicate with State Government” regarding the issue. (Id.) The Complaint further alleges
that “Hon. Sen. Robert D. Ford, Correctional Penology Committee Member,” has failed to
enforce South Carolina laws and the “SCDC Emergency Powers Release Act” to address
overcrowded conditions. (Id.)
In his Complaint, Plaintiff seeks to reduce all SCDC prison inmates’ sentences to “the
minimum of 41% under the Emergency Overpowers Release Act.” (Id. at 5.) In addition,
Plaintiff seeks an order enjoining SCDC overcrowding and compelling separate housing for
violent and non-violent inmates. (Id.) Plaintiff also seeks monetary damages. (Id.)
On March 26, 2013, the Magistrate Judge issued the Report recommending the court
dismiss the action without prejudice and without issuance and service of process. (ECF No. 13
at 8.) The Magistrate Judge found that Plaintiff’s Complaint failed to provide facts showing that
“any of the defendants were personally involved in Plaintiff’s alleged placement in an
overcrowded cell at KCI or PCI.” (Id. at 4.) Since the Complaint contained no personal
allegations against Defendants, all claims should be dismissed. (Id.) While it is possible to show
that Defendants could be liable in their supervisory capacities, the Magistrate Judge found that
Plaintiff did not meet any of the criteria necessary to do so because he failed to show they were
“aware of, or deliberately indifferent to, any constitutional risk of injury to him.” (Id. at 5.)
Additionally, the Magistrate Judge found that Plaintiff failed to show “extreme deprivation of a
basic human need” such that the overcrowded conditions at KCI or PCI violated Plaintiff’s
constitutional rights. (Id. at 5-6.) The Magistrate Judge also noted that Plaintiff’s claims

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regarding his classification and placement are subject to summary dismissal because South
Carolina law confers “no protected liberty interest upon state inmates regarding prison
classification.” (Id. at 6-7.) Finally, the Report found that Plaintiff’s request for an order
compelling SCDC employees to ease overcrowding and separate violent and non-violent inmates
could not be granted by this court because it lacks jurisdiction to compel state officials and
employees to act pursuant to 28 U.S.C. §§ 1361 and 1651.2 (Id. 7-8.)
Plaintiff timely filed his Objections on April 3, 2013. (ECF No. 15 at 10.) Thereafter,
Plaintiff filed his Supplement to these Objections on July 29, 2013. (ECF No. 17 at 1.)
II.

JURISDICTION

The court has jurisdiction over Plaintiff’s claims against Defendants pursuant to 28
U.S.C. § 1331 because Plaintiff filed his action in this court under 42 U.S.C. § 1983 (ECF No. 1
at 3), which permits an injured party to bring a civil action against a person who, acting under
color of state law, ordinance, regulation, or custom, causes the injured party to be deprived of
“any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
III.

LEGAL STANDARD AND ANALYSIS

The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews 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 to which specific objections are made, and the court may accept,

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The Magistrate Judge also noted that Plaintiff’s request for a reduction in sentences of all
prison inmates is not cognizable under 28 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S.
475, 500 (1973) (habeas corpus is the exclusive remedy for a prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release) (emphasis added).

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reject, or modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the
matter with instructions. See 28 U.S.C. § 636(b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n the absence of a timely
filed objection, 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.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file specific
written objections to a Report will result in a waiver of the right to appeal from an Order from
the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the
requisite specificity, then de novo review by the court is not required.
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). While a pro se litigant is entitled to
“special judicial solicitude,” a court is not mandated to recognize vague claims or complaints
that fail “to allege anything that even remotely suggests a factual basis for the claim.” Weller v.
Dep’t of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
A. Plaintiff’s Objection Pursuant to the Nelson Decree
In his Objections, Plaintiff argues that the overcrowded conditions at KCI and PCI as
well as the holding of violent and non-violent inmates in the same facilities violate the Nelson

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Decree. (ECF No. 15 at 1-2.) In Plyler v. Leeke, adult prisoners in the custody of SCDC, as a
class, alleged that overcrowded conditions in SCDC prisons violated the Eighth Amendment.
Plyler v. Leeke, C/A No. 3:82-0876-2, 1986 WL 84459, at *1 (D.S.C. Mar. 26, 1986). However,
the parties reached a settlement agreement, which Plaintiff refers to as the Nelson Decree in his
Objections. Id. at *2. The Nelson Decree does not forbid the use of one cell for two prisoners.
Id. at *7. In fact, it provides that “up to one-half of the cells presently used for the general
population” at KCI and PCI in particular “may be double-celled.” Id. Further, while the Nelson
Decree does state that violent and non-violent prisoners must be separated, it does not mandate
that such prisoners must be housed in separate facilities. Id. at *20. Rather, classification
procedures must “separate violent from non-violent prisoners at each institution.” Id. (emphasis
added).
While states may, under appropriate circumstances, create liberty interests protected by
the Constitution, “these interests will generally be limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Plaintiff’s argument regarding the
overcrowding and holding of violent and non-violent prisoners at the same institution not only
fails to violate the Nelson Decree on its face, but also ignores the fact that Plaintiff has no liberty
interest regarding his classification. See Keeler v. Pea, 782 F. Supp. 42, 43-44 (D.S.C. 1992)
(citing Meachum v. Fano, 427 U.S. 215 (1976)); Brown v. Evatt, 470 S.E.2d 848, 851 (S.C.
1996) (state statutes and SCDC’s operational classification regulations do not create a liberty
interest in security or custody classifications). Plaintiff’s allegations of overcrowding in his
Objections fail to amount to an “atypical and significant hardship” that invest a liberty interest in
him.

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B. Plaintiff’s Objections on the Basis of Sufficient Allegations in his Complaint
In his Objections, Plaintiff states that his Complaint provides sufficient facts and
allegations to show that Defendants were personally involved in depriving Plaintiff of his
constitutional rights. (ECF No. 15 at 6.) To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege two elements: (1) “the violation of a right secured by the Constitution and law of the
United States” and (2) this violation “was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiffs must show that a defendant acted
“personally in the deprivation of the plaintiffs’ rights.” Vinnedge v. Gibbs, 550 F.2d 926, 928
(4th Cir. 1977). When a complaint lacks such personal allegations against a defendant, that
defendant should be dismissed. See Key v. Miano, C/A No. 1:11-1613-DCN-SVH, 2012 WL
2263352, at *2 (D.S.C. Jun. 15, 2012).

Beyond his conclusory statement concerning the

Complaint’s sufficiency, Plaintiff fails to point to any new facts in his Objections regarding
Defendants’ personal involvement in Plaintiff’s treatment or argue that the Magistrate Judge
failed to acknowledge a fact or allegation Plaintiff made against Defendants in his Complaint.
An independent review of Plaintiff’s Complaint reveals no fact or allegation that can be
construed as showing Defendants personally acted to deprive Plaintiff of his constitutional rights.
Plaintiff further contends in his Objections that his Complaint “demonstrated that all of
the SCDC Defendants . . . were aware of or deliberately indifferent to all constitutional risks or
injury” to Plaintiff.

(ECF No. 15 at 7.)

It is possible for officials to be held liable for

constitutional injuries in their supervisory capacity when the plaintiff shows (1) the supervisory
official was actually or constructively aware of a risk of constitutional injury, (2) was
deliberately indifferent to that risk, and (3) a positive casual link exists between the supervisor’s
inaction and the injury suffered by the plaintiff. Carter v. Morris, 164 F.3d 215, 221 (4th Cir.

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1999). Again, Plaintiff does not present new facts or make any new allegations in his Objections
or Supplement showing that Defendants were aware of or deliberately indifferent to the risk of
constitutional injury towards Plaintiff. Upon independent review of his Complaint, Plaintiff
provided no facts or substantive allegations to find Defendants liable in their supervisory
capacity.
Plaintiff also argues that his Complaint “provides sufficient factual information to show
that the alleged overcrowding and crowding conditions of KCI and PCI” have violated his
constitutional rights. (ECF NO. 15 at 8.) To show an Eighth Amendment violation, a prisoner
must show that ‘the deprivation of [a] basic human need was objectively sufficiently serious,’
and that ‘subjectively the official act[ed] with a sufficiently culpable state of mind.’” Shakka v.
Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Strickler v. Waters, 989 F.2d 1375, 1379 (4th
Cir. 1993)). While unconnected to his claim of overcrowding, Plaintiff appears to put forth a
new allegation that the floor was flooded in his cell. (ECF No. 15 at 6.) However, a flooded
floor has not traditionally been treated as a violation of a prisoner’s Eighth Amendment rights.
See Smith v. Fields, C/A No. 96-6001, 1996 U.S. App. LEXIS 10156, at *2-3 (10th Cir. May 2,
1996) (Prisoner’s treatment did not implicate the Eighth Amendment where he was housed “in a
cell with a flooded floor and a bunk that sagged to the floor.”); Bagwell v. Brewington-Carr, C/A
No. 97-321-GMS, 2000 U.S. Dist. LEXIS 21276, at *19 (D. Del. Apr. 27, 2000) (No violation of
the Eighth Amendment by confining a prisoner in a flooded cell for up to a few days).
Moreover, in his conclusory statement regarding the Complaint’s sufficiency, Plaintiff
fails to introduce any new facts specifically regarding overcrowding showing that his treatment
amounted to a “deprivation of [a] basic human need.”

Upon independent review of his

Complaint and Objections, Plaintiff has not provided any facts or made allegations that his

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treatment at PCI or KCI deprived him of basic human needs or that Defendants had a
“sufficiently culpable state of mind.”
C. Plaintiff’s Objection to the Report’s Consideration of 28 U.S.C. § 1361
Plaintiff appears to object to the Magistrate Judge’s characterization of his request for an
order preventing SCDC overcrowding and requiring separation of violent and non-violent
inmates as a writ of mandamus. (ECF No. 15 at 9; ECF No. 13 at 7; ECF No. 1 at 5.) Plaintiff
argues that he has not requested a writ of mandamus under 28 U.S.C. § 1361. (ECF No. 15 at 9.)
However, the order Plaintiff requested in his Complaint would necessarily be accomplished by
compelling state officials and employees to implement measures to prevent SCDC overcrowding
and separate violent and non-violent inmates. Therefore, Plaintiff’s request amounts to one for
mandamus relief.
Under 28 U.S.C. § 1361, federal district courts are granted “original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The writ of
mandamus is “infrequently used by federal courts, and its use is usually limited to cases where a
federal court is acting in aid of its own jurisdiction. Chamberlain v. Kershaw Corr. Inst., C/A
No. 6:09-2177-HFF-WMC, 2009 U.S. Dist. LEXIS 87510, at *7 (D.S.C. Sept. 15, 2009). Thus,
a federal court cannot issue a writ of mandamus against state officials. Id.; see also Gurley v.
Super. Ct. of Mecklenburg Cnty., 411 F.2d 586, 587 (4th Cir. 1969) (“Even if we were to
liberally construe this petition as an appeal from the denial of the issuance of a writ of mandamus
by the District Court[,] we still have no jurisdiction for the reason that the District Court was also
without jurisdiction to issue the writ.”). Because Plaintiff essentially seeks a mandamus writ
against state officials and employees, this court lacks jurisdiction to grant such relief under 28

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U.S.C. § 1361.
D. Plaintiff’s Supplement to his Objections
On July 29, 2013, Plaintiff submitted a Supplement to his Objections in which he
contends that the relief to be granted in his case “is limited to that necessary to remove
conditions causing Eighth Amendment violations, cruel and unusual punishments, [and] SCDC
crowding and overcrowding.” (ECF No. 17 at 1.)

However, Plaintiff does not put forth any

specific objections to the Report in this Supplement. Because there are no specific objections as
required by Federal Rule of Civil Procedure 72(b), the court need not conduct a further de novo
review of Plaintiff’s case. See Fed. R. Civ. P. 72(b). The court does not find clear error and
accepts the Magistrate Judge’s Report on all issues Plaintiff did not specifically object to in his
Objections.
IV.

CONCLUSION

Based on the aforementioned reasons and a thorough review of the Report and the record
in this case, the court ACCEPTS the Report (ECF No. 13) of the Magistrate Judge with the
exception that Plaintiff’s action be dismissed with prejudice. It is therefore ordered that this
action (ECF No. 1) is DISMISSED with prejudice and without issuance and service of process.
IT IS SO ORDERED.

United States District Judge
July 15, 2015
Columbia, South Carolina

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