Ridley v. McGill et al

Filing 98

ORDER AND OPINION concurring 75 Report and Recommendation; granting Defendant's 37 Motion for Summary Judgment; and denying Plaintiff's 54 Motion for TRO as moot. Signed by Honorable Margaret B Seymour on 2/23/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Richard David Ridley,

)
) C/A No. 1:15-1612-MBS
Plaintiff,
)
)
vs.
)
)
ORDER AND OPINION
John McGill, Director DMH; Holly
)
Scaturo, Director SVPTP; Kimberly
)
Poholchuk, Program Coordinator;
)
Warden Stevenson,
)
)
Defendants.
)
____________________________________)
Plaintiff Richard David Ridley is committed to the custody of the Sexually Violent Predator
Treatment Program (“SVPTP”) at the South Carolina Department of Mental Health pursuant to the
Sexually Violent Predator Act, S.C. Code Ann. §§ 44-48-10 through -170 (the “SVPA”). Plaintiff,
proceeding pro se, filed a complaint on April 14, 2015, asserting that Defendants have violated his
constitutional rights in various respects. See 42 U.S.C. § 1983. Plaintiff contends that:
1.

his First Amendment rights have been violated because (a) he allegedly was
forced to sign a contract for treatment; (b) he must participate in treatment;
(c) he must incriminate himself during treatment; (d) he cannot speak freely;
(e) he is not allowed to correspond with this cousin, who is in custody of the
South Carolina Department of Corrections (“SCDC”);

2.

his Fourth Amendment rights were violated because his room was searched
three times between October 14, 2014, and December 17, 2014;

3.

he is subject to unconstitutional conditions of confinement in violation of the
Eighth Amendment because (a) his canteen privileges are restricted; (b) his

food contains debris; (c) he is forced to share his room with another person;
(d) he has inadequate access to legal resources;
4.

his Fourteenth Amendment rights have been violated because (a) he receives
inadequate group treatment; (b) “therapeutic room restriction,” which
constitutes confinement to one’s room for twenty-three hours of the day, is
used as punishment; (c) the staff uses corporal punishment;

5.

His right to equal protection has been violated because residents are placed
in color-coded jumpsuits; and

6.

The SVPA is unconstitutional because it violates the double jeopardy and ex
post facto clauses.

See generally ECF No. 1.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Shiva V. Hodges for pretrial handling.
On October 6, 2015, Defendants filed a motion for summary judgment. On October 7, 2015,
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary
judgment procedures and the possible consequences if he failed to respond adequately. Plaintiff filed
a response in opposition to Defendants’ motion on December 3, 2015, to which Defendants filed a
reply on December 14, 2015. Plaintiff also filed a motion for temporary restraining order and/or
preliminary injunction on February 10, 2016, to which Defendants filed a response in opposition on
February 26, 2016. Plaintiff filed a reply on March 7, 2016. Plaintiff also filed a number of
affidavits in support of his complaint on July 22, 2016, and July 25, 2016.
On July 27, 2016, the Magistrate Judge issued a Report and Recommendation in which she
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recommended that Defendants’ motion for summary judgment be granted, and that Plaintiff’s motion
for a temporary restraining order and/or preliminary injunction be rendered moot. Plaintiff filed no
objections to the Report and Recommendation. Accordingly, on August 30, 2016, the court issued
an order adopting the Report and Recommendation. Summary judgment was entered on August 31,
2016.
On September 8, 2016, Plaintiff filed a motion to alter judgment or amend judgment pursuant
to Fed. R. Civ. P. 59(e) or 60(b)(1) and (6). Plaintiff informed the court he had not received a copy
of the Report and Recommendation. Plaintiff stated he was made aware of the Report and
Recommendation only by viewing it on Westlaw, an electronic database. With consent of
Defendants, the court vacated its August 30, 2016, order and reopened the case to allow Plaintiff to
file a response to the Report and Recommendation. Plaintiff filed objections to the Report and
Recommendation on November 2, 2016, to which Defendants filed a reply on November 21, 2016.
Plaintiff filed a surreply on November 29, 2016. Defendants filed a motion to strike or quash the
surreply on December 1, 2016. The court will consider Plaintiff’s surreply.

Accordingly,

Defendants’ motion to strike or quash (ECF No. 96) is denied.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This 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.

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I. DISCUSSION
Involuntarily committed mental patients, such as Plaintiff, retain a liberty interest in
conditions of reasonable care and safety in reasonably nonrestrictive confinement conditions.
Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Courts must balance the individual’s liberty
interest against relevant state interests, and deference must be given to the exercise of professional
judgment in order to minimize interference by the federal judiciary with the internal operations of
state institutions. Id. at 321-22. A decision made by a professional is presumptively valid; liability
is appropriate “only when the decision by the professional is such a substantial departure from
accepted professional judgment, practice, or standards as to demonstrate that the person responsible
actually did not base the decision on such a judgment.” Id. at 323.
A.

Magistrate Judge’s Report and Recommendation
1.

First Amendment Claims. The Magistrate Judge observed that the purpose of the

SVPTP is to treat sexually violent individuals in order to allow them to return to the general public.
The Magistrate Judge determined that Defendants’ decisions to subject Plaintiff to reasonable
restrictions on privileges if he chooses not to participate in treatment does not depart from accepted
professional judgment. The Magistrate Judge noted that both the SVPTP and SCDC have policies
prohibiting SVPTP residents and SCDC inmates from communicating unless they are immediate
family members, and that the policies are in place for the safety of the inmates, residents, and staff
of each institution. The Magistrate Judge determined that the restrictions placed on Plaintiff as a
civilly-detained person did not depart so substantially from accepted professional judgment that they
cannot be based on professional judgment.
2.

Fourth Amendment Claims. Regarding searches of Plaintiff’s room, the Magistrate
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Judge concurred with Defendants’ assertion that searches of residents’ rooms for contraband is
necessary to maintain the security and safety of the environment. The Magistrate Judge determined
that the policies did not substantially depart from accepted professional judgment and were entitled
to deference.
3.

Denial of Access to Courts. The Magistrate Judge next addressed Plaintiff’s claim

of inadequate access to the courts. The Magistrate Judge found that a weekly one-hour online
research session through a Westlaw subscription is sufficient to provide Plaintiff with meaningful
access to the courts. The Magistrate Judge also determined that Plaintiff failed to show how he had
been injured by any limit on legal research. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996).
In addition, the Magistrate Judge addressed a claim raised by Plaintiff in his response in
opposition to summary judgment that Defendants unconstitutionally denied him access to the
Diagnostic and Statistical Manual of Mental Disorders (the “DSM-5 Manual”). The Magistrate
Judge noted that the DSM-5 Manual is for use by trained clinicians, and further that Defendants
identified the possibility of misuse of the DSM-5 Manual by SVPTP residents to aid them in
malingering or masking symptoms. The Magistrate Judge determined that Defendants’ restricting
access to the Manual did not substantially depart from accepted professional judgment.
4.

Conditions of Confinement Claims. The Magistrate Judge noted that Plaintiff lacks

standing to contest SVPTP’s double-bunking policy, since he has never been double-bunked. In
addition, the Magistrate Judge noted that Plaintiff does not dispute Defendants’ contention that
Plaintiff has not been subjected to corporal punishment. Regarding debris in Plaintiff’s food, the
Magistrate Judge noted that Plaintiff complained on one occasion about a container of juice smelling
bad; the juice was replaced. The Magistrate Judge determined that Plaintiff’s claims relating to
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unconstitutional conditions of confinement did not rise to the level of a cognizable injury. The
Magistrate Judge further found that Plaintiff lacks standing to complain of Defendants’ use of a
therapeutic room restriction because he has never been subject to such a restriction.
The Magistrate Judge found that Plaintiff’s complaints regarding canteen and other privileges
did not implicate constitutional concerns. The Magistrate Judge noted that canteen and other
privileges proceed through color levels awarded through positive behavior and participating in
treatment. The Magistrate Judge further observed that no residents are allowed to purchase electric
razors or aspirin because of safety concerns. Accordingly, the Magistrate Judge determined that
Defendants’ restrictions did not substantially depart from accepted professional judgment.
5.

Equal Protection Claim. The Magistrate Judge determined that Plaintiff had failed

to show how he had been singled out for discrimination regarding color-coded jumpsuits, as all
SVPTP residents must use yellow jumpsuits when they are transported. See Engquist v. Oregon
Dep’t of Agric., 553 U.S. 591, 602 (noting that Equal Protection Clause requires those who are
similarly situated to be treated alike, absent a rational reason). The Magistrate Judge further noted
that Plaintiff had never been required to wear another color jumpsuit, and therefore lacks standing
to complain about color-coded jumpsuits different from the yellow jumpsuits all SVPTP residents
wear.
6.

Ex Post Facto and Double Jeopardy Clause Claims

Regarding the constitutionality of the SVPA, the Magistrate Judge observed that courts have
consistently held the SVPA is a civil, nonpunitive scheme that does not violate the double jeopardy
or ex post facto clauses. See e.g., In re Matthew, 550 S.E.2d 311, 316 (S.C. 2001).

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7.

Eleventh Amendment

Finally, the Magistrate Judge determined that, to the extent Plaintiff sues Defendants in their
official capacities for monetary damages, they are immune from suit under the Eleventh Amendment.
B.

Plaintiff’s Objections to Report and Recommendation
1.

First Amendment Claims. Plaintiff states that the stakes of failing to participate in

treatment are so high as to compel speech, in violation of his constitutional rights both to speak
freely and to refrain from speaking at all. Plaintiff also claims that he should be able to correspond
with his cousin, a privilege he claims to have had while he was incarcerated criminally. Plaintiff
fails to establish that the incentives and restrictions placed on privileges by the professionals in
charge of his treatment are not based on accepted professional judgment. Plaintiff’s objections are
without merit.
2.

Fourth Amendment Claims. Plaintiff again states that his cell unreasonably was

searched three times in less than ten days. As the Magistrate Judge correctly observed, the seizure
of contraband is of great importance to SVPTP. Plaintiff fails to establish that decisions regarding
searching for contraband are not based on accepted professional judgment. Plaintiff’s objection is
without merit.
3.

Denial of Access to Courts. Plaintiff complains that use of Westlaw for one hour per

week denies him adequate access to the courts. To the contrary, the efficient use of Westlaw can
produce results that otherwise would require many hours of research in a law library. Plaintiff has
not demonstrated that decisions to restrict Westlaw research are not based on accepted professional
judgment.
Plaintiff again contends that he is being unfairly denied access to the DSM-5 Manual and that
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he should have access to the publication in order to represent himself in his civil commitment case.
In the court’s view, Plaintiff’s request to review the DSM-5 Manual should be addressed to the
presiding officer in his civil commitment case, who can determine whether Plaintiff’s request is
relevant to any issue in the litigation. Plaintiff’s objections are without merit.
4.

Conditions of Confinement Claims. Plaintiff again complains of double bunking,

corporal punishment, adulterated food, and therapeutic room restrictions. As the Magistrate Judge
explained, Plaintiff lacks standing to complaint about double bunking, corporal punishment, and
therapeutic room restrictions, since he has not been subject to any of these conditions. Further, the
only evidence is that Plaintiff complained one time about his juice, and the juice was replaced.
Plaintiff cannot act as a “knight-errant” for other SVPTP residents; his claims must be confined to
redress for any violation of his own personal rights. See Hummer v. Dalton, 657 F.2d 621, 625-26
(4th Cir. 1981).
Plaintiff objects to the Magistrate Judge’s finding that restrictions on canteen privileges do
not implicate constitutional concerns. Plaintiff states that he was able to obtain items as a prisoner
that he now is prohibited from purchasing as a resident of the SVPTP. Plaintiff fails to demonstrate,
however, that Defendants’ awards system and their citation to safety concerns with some items are
not based on acceptable professional judgment. Plaintiff’s objections are without merit.
5.

Equal Protection Claims. Plaintiff asserts that being placed in a bright yellow outfit

when he is transported outside the facility is stigmatizing and discriminatory. Plaintiff contends that
no other civilly committed individuals in care of the South Carolina Department of Mental Health
are subject to this practice. Plaintiff’s new assertion was not addressed by the Magistrate Judge, who
reviewed Plaintiff’s claim in his complaint that color-coded jumpsuits are discriminatory. See ECF
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No 1, 5 ( “Orange is for a person who acts out sexually in the program. Green is for a person who
is a perceived threat or makes threats or might be violent.”).
As explained hereinabove, the Equal Protection Clause is implicated when similarly-situated
persons are treated differently. Here, all SVPTP residents wear yellow jumpsuits when they are
transported outside of the facility. The colored jumpsuit policy is implemented as a safety measure
for SVPTP employees and residents. Affidavit of Holly Scaturo, ¶ 15, ECF No. 37-3. Plaintiff fails
to demonstrate that the policy is not based on acceptable professional judgment, or that the policy
is not consistently applied to similarly-situated SVPTP residents. Plaintiff’s objections are without
merit.
6.

Ex Post Facto and Double Jeopardy Clause Claims. Plaintiff states that he is being

held under punitive conditions of confinement and has been provided no procedural due process
protections because he has not been afforded a mental evaluation since his original commitment date
of August 25, 2014.
As the Magistrate Judge explained, Plaintiff is regularly evaluated by staff to determine if
there is any change in his status as meeting the legal criteria as a sexually violent predator. See
Affidavit of Dr. Kelly Gothard, ¶ 11, ECF No. 44-5. Moreover, Plaintiff has a right under the SVPA
to request an independent evaluation. S.C. Code Ann. § 44-48-110 provides that a person committed
under the SVPA
must have an examination of his mental condition performed once every year. The
person may retain or, if the person is indigent and so requests, the court may appoint
a qualified expert to examine the person, and the expert must have access to all
medical, psychological, criminal offense, and disciplinary records and reports
concerning the person. The annual report must be provided to the court which
committed the person pursuant to this chapter, the Attorney General, the solicitor
who prosecuted the person, and the multidisciplinary team. The court must conduct
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an annual hearing to review the status of the committed person.
Plaintiff’s objections are without merit.
7.

Eleventh Amendment Immunity. Plaintiff states that Defendants have personally

taken part in violating his constitutional rights and that they approved policies and received
complaints that have been made regarding the SVPTP. As the Magistrate Judge correctly found,
Defendants are immune from liability for monetary damages in their official capacities. With respect
to Defendants’ liability in their individual capacities, the court has determined no constitutional
deprivations have occurred. Plaintiff’s objection is without merit.
CONCLUSION
The court concurs in the Report and Recommendation of the Magistrate Judge and
incorporates it herein by reference.

For the reasons stated herein and in the Report and

Recommendation, Defendants’ motion for summary judgment (ECF No. 37) is granted. Plaintiff’s
motion for temporary restraining order and/or preliminary injunction (ECF No. 54) is denied as
moot.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
February 23, 2017

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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