Williams v. Ozmint et al

Filing 91

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the Report and Recommendation and incorporates it herein by reference. Defendants motion for summary judgment 66 is GRANTED. To the extent that Plaintiffs complain t alleges additional claims for relief under state law, namely intentional infliction of emotional distress, the court exercises its discretion and declines to review the claim as it has dismissed all claims over which it has original jurisdiction. Thus, any state law claims asserted by Plaintiff are hereby DISMISSED without prejudice. Signed by Chief Judge Margaret B Seymour on 02/21/2012. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James Harold Williams, #208954,

)
)
Plaintiff,
)
)
vs.
)
)
Jon Ozmint; Annie Mae Sellers; Cecilia R. )
Reynolds; Pamela Phelps; A. Hardin,
)
SCDC Inmate Grievance Administration; )
Dennis Patterso, SCDC Operations
)
Coordinator; Beverly Baker, SCDC
)
Office of General Counsel,
)
)
Defendants. )
)

C.A. No. 4:10-2355-MBS-TER

ORDER AND OPINION

James Harold Williams (“Plaintiff”) is a prisoner in custody of the South Carolina
Department of Corrections (“SCDC”). On September 10, 2010, Plaintiff filed a pro se action
under 42 U.S.C. § 1983, alleging that his constitutional rights were violated by Defendants. In
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the action was
referred to United States Magistrate Judge Thomas E. Rogers, III for review.
Background
Plaintiff alleges that in the early morning of August 21, 2009, he had an argument with
Defendant Phelps. Later that day, according to Defendants’ incident report, Defendant Phelps
entered Oak-A wing at approximately 7:05 a.m. to review Officer Tyson’s log book and observe
the wing. While doing so, Defendant Phelps observed Plaintiff in the door of cell 55 with his
pink jumpsuit below his knees, masturbating and looking directly at her. When Defendant
Phelps approached the cell, Plaintiff turned off the light in his cell and closed the door.
Defendant Phelps opened the cell door and found Plaintiff hiding under the bottom bunk.

Defendant Phelps informed Plaintiff that he would be charged with Exhibitionism and Public
Masturbation. Defendant Phelps exited the cell, but before she reached the bottom step of the
cell block, she saw Plaintiff masturbating again. She returned to Plaintiff’s cell and ordered him
to get dressed. She then escorted him to a holding cell and charged him with Exhibitionism and
Public Masturbation.
On September 29, 2009, a hearing was conducted based upon the charge against Plaintiff.
Plaintiff was found guilty of the charge and sanctioned to: a loss of 540 days of canteen
privileges, 540 days of telephone privileges, 90 days of good time credit, 360 days of
disciplinary detention, one year and 360 days suspension of visitation, and was required to wear
a pink jumpsuit for one year. In the instant action, Plaintiff alleges that his first disciplinary
violation hearing was supposed to take place within 21 days of the August 21, 2009 incident, but
that Defendant Reynolds approved an unauthorized extension of the deadline. Further, Plaintiff
alleges that Defendants Reynolds and Ozmint made changes to the Inmate Disciplinary Policy,
specifically the regulations with regard to the timing of disciplinary hearings, without informing
the inmate population. Plaintiff contends that he only discovered this information after the date
of his first hearing.
Plaintiff appealed the decision of his first disciplinary violations hearing to an
Administrative Law Judge (“ALJ”), arguing that the first hearing violated his due process rights
because he was not permitted to call Officer Tyson as a witness. In an order dated May 25,
2010, the ALJ reversed SCDC’s decision on the ground that the hearing violated Plaintiff’s due
process rights under the Constitution. The ALJ remanded the case for a rehearing within 60 days
where Plaintiff would be permitted to call witnesses. Defendants assert that they did not receive
the ALJ’s order until October 7, 2010. Defendants held a rehearing on October 19, 2010.

2

Plaintiff left the hearing while it was in progress, stating that it was too late for the hearing to be
held, because more than 60 days had lapsed since the date of the ALJ’s order of remand. The
hearing took place regardless and Plaintiff was found guilty of the charge, received the same
sanctions, but was given credit for the sanctions back to the date of the first disciplinary hearing.
On September 10, 2010, Plaintiff filed a pro se action under 42 U.S.C. § 1983. On April
5, 2011, Plaintiff filed an amended complaint, asserting claims for retaliation, bias, violation of
his due process rights, and intentional infliction of emotional distress. Plaintiff’s retaliation
claims include the allegations that 1) Defendant Phelps’ act of charging Plaintiff with
exhibitionism and public masturbation was retaliation for the argument the two of them had
earlier that morning on the day of the incident, and 2) Defendants retaliated against Plaintiff for
appealing the first hearing decision to an ALJ. In addition, Plaintiff alleged that his due process
rights were violated because Defendants changed the Inmate Disciplinary System Policy with
regard to the timing of disciplinary hearings without notifying the inmate population. Plaintiff
also alleged that Defendant Reynolds was a biased decision maker because she was the same
individual who, allegedly without authorization, approved the request for an extension of time to
hold the first hearing. Plaintiff also alleges that his due process rights were violated because the
first and second hearings were untimely held, and that in particular, Defendants violated the
ALJ’s directive to hold a rehearing within sixty days of the ALJ’s order.
On August 19, 2011, Defendants filed a motion for summary judgment pursuant to Fed.
R. Civ. P. 56. On August 22, 2011, the Magistrate Judge issued an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of Defendants’ motion for summary
judgment and the possible consequences of failing to respond adequately. On September 28,
2011, Plaintiff filed a motion for summary judgment. On October 24, 2011, the Magistrate

3

Judge issued a Report and Recommendation in which he recommended that Defendants’ motion
for summary judgment be granted and that Plaintiff’s motion for summary judgment be denied.
On November 14, 2011, Plaintiff filed objections to the Report and Recommendation
(“Plaintiff’s Objections”).
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). The court is charged with making a de
novo determination of any portions of the Magistrate Judge’s Report to which a specific
objection is made.

The court may accept, reject, or modify, in whole or in part, the

recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
Discussion
Standard of Review
Summary judgment should be granted “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is
“material” if proof of its existence or non-existence would affect the disposition of the case
under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). An
issue of material fact is genuine if the evidence offered is such that a reasonable jury might
return a verdict for the non-movant. Id. at 257. Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

4

In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124
(4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denials of the movant’s pleading, but instead must set forth specific facts
demonstrating a genuine issue for trial. Anderson, 477 U.S. at 252. However, there must be
sufficient evidence supporting the claimed factual dispute so as to require a jury or judge to
resolve the parties’ differing version of the truth at trial. Id. at 249. A party cannot create a
genuine issue of material fact solely with conclusions in his or her own affidavit or deposition
that are not based on personal knowledge. Latif v. Cmty. College of Baltimore, No. 08-2023,
2009 WL 4643890, at *2 (4th Cir. Dec. 9, 2009).
The Due Process Clause of the Fourteenth Amendment provides that no state shall
“deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend.
XIV, § 1. The Supreme Court has held that where state law provides prisoners with good time
credits, the prisoner has a liberty interest in his good time credits. Wolff v. McDonnell, 418 U.S.
539, 557 (1974). Accordingly, prison officials must accord an inmate with minimal due process
rights in any disciplinary hearing that could result in deprivation of good time credits. Id. The
Supreme Court set forth a number of specific due process protections that inmates are entitled to
with regard to such disciplinary hearings: 1) advance written notice of the charge at least 24
hours prior to the hearing; 2) a written statement prepared by the fact-finder outlining the
evidence relied upon and the reasons for the disciplinary action; 3) the opportunity to call
witnesses and present documentary evidence so long as it does not interfere with the institutional
safety or correctional goals of the prison; 4) a counsel substitute to assist illiterate inmates or
inmates with complex cases; and 5) an impartial person, who may be a prison official or

5

employee, to hear the matter. Furthermore, substantive due process is satisfied if the disciplinary
hearing decision was based upon some evidence. Superintendent, Mass. Correctional Institute v.
Hill, 472 U.S. 445, 455 (1985).
Changes to the Inmate Disciplinary System Policy
The Magistrate Judge noted that it is unclear what particular regulations Plaintiff is
alleging were changed without informing the prison population and how the changes prejudiced
him. In his Objections, Plaintiff attempts to clarify his allegation and states that Defendants
Reynold and Ozmint violated his right to due process when they made changes to Inmate
Disciplinary Policy 22.14 subsections 7.2, 7.4 and 7.7 without informing the inmate population.
Plaintiff does not state what those subsections previously provided, but recites what appears to
be the revised version of the text in his objections. Plaintiff states that subsection 7.2 requires a
violation hearing be held within 21 calendar days of the underlying incident constituting the
violation. In relevant part, subsection 7.4 states that one extension of the 21-day period will be
allowed for unforeseen circumstances only with the written approval of the Division of
Operations. Subsection 7.7 states that disciplinary hearings scheduled more than 30 days after
the incident date may be held only if approved by the Division of Operations and further that the
Warden must provide justification for disciplinary hearings held beyond 30 calendar days.
Plaintiff’s objections appear to imply that he did not discover these revisions until after his first
hearing. He seems to allege that he was prejudiced by his lack of prior knowledge regarding the
changes, because he was not able to address the revisions or any purported violations thereof at
his first hearing.
Plaintiff’s objections are without merit. Plaintiff does not assert that this alleged policy
change or his lack of knowledge regarding the change affected any of the due process protections

6

enumerated in Wolff. To the extent that the Inmate Disciplinary System policies provide more
procedural protections for prisoners than the minimum constitutional due process requirements
outlined by the Supreme Court, the policies constitute state law. Violations of state law cannot
properly be brought under § 1983. Riccio v. County of Fairfax, 907 F.2d 1459, 1469 (4th Cir.
1990); Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992). Thus, a violation of the particular
subsections of the Inmate Disciplinary System Policy cited by Plaintiff is not in and of itself a
constitutional due process violation. Furthermore, constitutional due process does not mandate
that Plaintiff have prior knowledge of or notice of information enabling him to bring forward all
potential state law claims in his prison disciplinary hearing.1 Plaintiff’s claims regarding failure
to notify the inmate population of changes to the Inmate Disciplinary System Policy are
dismissed.
Timeliness of Plaintiff’s first hearing
The Magistrate Judge found that any allegations that Plaintiff’s due process rights were
violated by the first hearing are moot, because the judgment from the first hearing was
overturned and remanded by the ALJ for a rehearing which was conducted by Defendants. In his
Objections, Plaintiff alleges that his first hearing was held past the 21-day deadline outlined by
the Inmate Disciplinary System Policy in violation of his due process rights.
Plaintiff’s objection is without merit. The court agrees with the Magistrate Judge’s
finding that allegations as to due process violations from the first hearing are moot.
Furthermore, the policy requiring that a disciplinary hearing be held within 21 days of the
incident is a state regulation which extends beyond the minimum constitutional due process
requirements outlined by the Supreme Court.
1

As such, a claim that this particular state

Even assuming that constitutional due process requires inmates to have at a minimum, constructive knowledge of
new regulations which make previously lawful conduct unlawful, Plaintiff is not alleging that the policy change at
issue created any new regulations regarding unlawful conduct.

7

regulation or policy was violated cannot properly be brought under § 1983. Riccio, 907 F.2d at
1469. Plaintiff’s due process claims as to the first disciplinary hearing are dismissed.
Biased Decision Maker
The Magistrate Judge does not address Plaintiff’s allegation of bias in the disciplinary
hearings; however, Plaintiff alleges in his Objections that Defendant Reynolds, who played a
role in Plaintiff’s disciplinary hearing, was a “bias decision-maker” because she was the same
individual who without authorization approved an extension of the deadline by which a
disciplinary hearing must be held. Plaintiff further alleges that Defendant Reynold’s decision
was one-sided and constituted a violation of due process.
Plaintiff’s Objection is without merit. The fact that Defendant Reynolds authorized an
extension of the deadline by which Plaintiff’s disciplinary hearing could be held does not alone
show that Plaintiff was not afforded an impartial decision-maker.

Furthermore, Plaintiff’s

conclusory allegations alone are insufficient to preclude the granting of summary judgment.
Latif, 2009 WL 4643890, at *2. To the extent that Plaintiff claims that either or both of his
SCDC hearings were not adjudicated by an impartial officer, including Defendant Reynolds, his
claims are dismissed.
Timeliness and Constitutional Adequacy of Plaintiff’s Rehearing
Plaintiff alleged in his complaint that the rehearing held by Defendants violated due
process because it was held 86 days after the expiration of the 60-day deadline ordered by the
ALJ for a rehearing. The Magistrate Judge held that since the rehearing afforded Plaintiff all the
due process protections outlined in Wolff, Plaintiff’s due process rights were not violated in the
rehearing. Plaintiff re-alleges in his Objections that Defendants violated his constitutional due
process rights because the rehearing took place after the 60-day deadline ordered by the ALJ.

8

Plaintiff alleges that Defendants received notice of the ALJ’s order shortly after it was filed on
May 25, 2010 and that he received notice of the ALJ’s order on May 27, 2010. Plaintiff alleges
that Defendant’s assertion that they did not receive notice until October 7, 2010 is false.
Even if Defendants had notice of the ALJ’s order in May 2010 and violated that order by
not complying with the ALJ’s deadline of 60-days in which to hold a rehearing, that would
constitute a violation of state law. As such, a claim that the state regulation was violated cannot
properly be brought under § 1983. See Riccio, 907 F.2d at 1469. The 60-day deadline for a
rehearing is not one of the constitutional due process rights outlined or contemplated by the
Supreme Court in Wolff.
To the extent that Plaintiff alleges that the rehearing violated due process because it took
place without any witness testimony, Plaintiff’s objection is without merit. Under Wolff, the
Plaintiff need only be afforded the opportunity to call witnesses. The facts indicate that a
rehearing was held on October 19, 2010 where Plaintiff had the opportunity to call a witness.
Plaintiff chose to walk out of the hearing without exercising his right to call witnesses, alleging
that the hearing was untimely. Since there is no evidence that Plaintiff was not afforded the
opportunity to exercise his constitutional due process rights at the rehearing, Plaintiff’s claim that
the rehearing violated his due process rights must be dismissed.
Claims of Retaliation
The Magistrate Judge found that Plaintiff’s claim of retaliation failed as a matter of law,
because Plaintiff did not allege that Defendants’ retaliatory acts were taken in response to
Plaintiff’s exercise of a constitutionally protected right.

Plaintiff objected and argued that

Defendant Phelps filed the underlying disciplinary charge, which Plaintiff claims contained false
accusations against him, in retaliation for their argument in the cafeteria on August 21, 2009.

9

Further, Plaintiff alleged that Defendants retaliated against Plaintiff for filing a notice of appeal
by subjecting him to cruel and unusual punishment.
To state a claim of retaliation under § 1983, a plaintiff must allege either that the
retaliatory act was taken in response to the exercise of a constitutionally protected right or that
the act itself violated a constitutionally protected right. Adams v. Rice, 40 F.3d 72, 74 (4th Cir.
1994). An inmate must present more than conclusory accusations of retaliation and provide facts
that show the exercise of his constitutional right was a substantial factor motivating the
retaliation. See id.; Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Hughes v. Bledsoe,
48 F.3d 1376, 1387 n. 11 (4th Cir. 1995).
Plaintiff’s Objections are without merit. Plaintiff does not allege that Defendant Phelps’
retaliatory acts were taken in response to the exercise of a constitutionally protected right.
Furthermore, to the extent that Plaintiff argues that he had a constitutional right to appeal to the
ALJ and Defendants retaliated against him for doing so, Plaintiff fails to identify Defendants’
retaliatory act. Plaintiff simply alleges that Defendants subjected him to cruel and unusual
punishment in retaliation but does not specify the cruel or unusual punishment to which he is
referring. Plaintiff also fails to show how any punishment given to him by Defendants in the
judgment at his rehearing was motivated in substantial part by his exercising the right to appeal
to an ALJ. Furthermore, Plaintiff’s failure to present more than conclusory accusations of
retaliation is legally insufficient to allege a claim of retaliation under § 1983. Thus, Plaintiff’s
retaliation claims under § 1983 are dismissed.
Qualified Immunity
The Magistrate Judge found that Defendants were entitled to qualified immunity to the
extent that they were being sued in their individual capacities, because Plaintiff failed to show

10

that Defendants violated any of his clearly established constitutional or statutory rights. Plaintiff
objects, arguing that Defendants are not entitled to qualified immunity, because they should have
known they were violating Plaintiff’s constitutional rights by committing the acts alleged in the
complaint.
In order to assert a claim under 42 U.S.C. § 1983, Plaintiff must allege violations of the
U.S. Constitution or federal statutory laws. Maine v. Thiboutot, 448 U.S. 1 (1980). The court
agrees with the Magistrate Judge that Plaintiff has failed to show that Defendants violated any of
his clearly established constitutional or federal statutory rights. Plaintiff’s objection is without
merit.
Conclusion
After a thorough review of the Report and Recommendation, the Plaintiff’s Objections,
the record in its entirety, and the applicable law, the court concurs with the Magistrate Judge’s
findings. The court adopts the Report and Recommendation and incorporates it herein by
reference.

Defendants’ motion for summary judgment is GRANTED.

To the extent that

Plaintiff’s complaint alleges additional claims for relief under state law, namely intentional
infliction of emotional distress, the court exercises its discretion and declines to review the claim
as it has dismissed all claims over which it has original jurisdiction. Thus, any state law claims
asserted by Plaintiff are hereby DISMISSED without prejudice.

IT IS SO ORDERED.
s/ Margaret B. Seymour
Margaret B. Seymour
Chief United States District Judge
February 21, 2012
Columbia, South Carolina
11