Ackbar v. State of South Carolina et al
ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the Report and Recommendation of the Magistrate Judge (Dkt. No. 56 ) as the Order of the Court and GRANTS Defendants' motion to dismiss (Dkt. No. 34 ). All other pending motions are DENIED AS MOOT.AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 03/05/2018. (dsto, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Supreme Raheem Ackbar, #182864,
a/kla Ronald Gary, #25 7886,
William R. Byers, Jr. , et al.,
Civil Action No. 4: 17-1019-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendants' motion to dismiss be granted. For the reasons set forth
below, the Court adopts the Report and Recommendation.
Plaintiff is serving a life sentence for murder in the custody of the South Carolina
Department of Corrections ("SCDC"). Plaintiff alleges that on February 17, 2015, Defendants
Skipper, Cooper, and Wilson searched his cell for contraband and confiscated Plaintiffs "God
Center Culture Islam" materials. Those materials appear to relate to the Nation of Gods and Earths,
also known as "five percenters," an offshoot of the Nation of Islam. It also appears that the
materials have been lost; prison officials have offered to replace them if Plaintiff would provide a
list itemizing the materials. (See Dkt. No. 1-1 at 3-4.)
Plaintiff filed the present action on April 19, 2017, seeking immediate return of the
materials and $500,000 in damages for violations of his constitutional rights under 42 U.S.C.
§ 1983. Defendants have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. On January 22, 2018, the Magistrate Judge recommended dismissal. Plaintiff filed
timely objections, but his objections are merely non-specific boilerplate that raises no substantive
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)(l). 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 Lif & 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).
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the
allegations constitute ' a short and plain statement of the claim showing that the pleader is entitled
to relief.'" Republican Party ofN. C. v. Martin , 980 F.2d 943 , 952 (4th Cir. 1992) (quotation marks
and citation omitted). In a Rule 12(b)( 6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mias., Inc. v. JD. Assocs. Ltd. P 'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in a light most favorable to the nonmoving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face ." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
An incarcerated prisoner "retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological objectives of the corrections
system." Pell v. Procunier, 417 U.S. 817, 822 (1974). To state a claim under the Free Exercise
clause of the First Amendment, a plaintiff must allege facts sufficient to show that he holds a
sincere belief that is religious in nature and that prison regulations impose a substantial burden on
his right to free exercise of that religious belief. O 'Lone v. Estate of Shabazz, 482 U.S. 342, 349
(1987). A regulation imposes a " substantial burden" if it "puts substantial pressure on an adherent
to modify his behavior and to violate his beliefs." Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.
2006) (internal quotation marks omitted). No substantial burden occurs if the government action
merely makes the "religious exercise more expensive or difficult" or inconvenient, but does not
pressure the adherent to violate his or her religious beliefs or abandon one of the precepts of his or
her religion. Living Water Church of God v. Charter Tp. ofMeridian , 258 F. App ' x 729, 737 (6th
The Magistrate Judge determined that Plaintiff failed to allege facts showing that the
confiscation by SCDC employees imposed a "substantial burden" on his right to free exercise of
his religion. The Court agrees. Plaintiff has not alleged facts suggesting that he is unable to
practice his religion without the confiscated materials. Nor has he alleged facts explaining why
the materials cannot simply be replaced, as prison authorities have offered to do. He therefore
fails to state a claim of violation of the First Amendment right to free exercise ofreligion.
Plaintiff also alleges the seizure of his materials from his cell violated his right to be free
from unreasonable seizures under the Fourth Amendment. The Supreme Court, however, has held
that prisoners may not challenge seizures of items from their prison cells under the Fourth
Amendment. Hudson v. Palmer, 468 U.S. 517, 526 (1984). Plaintiff therefore fails to state a claim
of violation of the Fourth Amendment right to be free from unreasonable searches or seizures.
Fifth and Fourteenth Amendments
Plaintiff also alleges the seizure of his materials from his cell violated his due process rights
by depriving him of property without due process oflaw. The Supreme Court has held that seizure
of a prisoner' s property does not present a constitutional issue if the state provides an adequate
Id. at 534-36. Here, prison officials have offered to replace the
materials, and, if that would be inadequate, Plaintiff may seek remedies in state court under the
South Carolina Tort Claims Act. Plaintiff therefore fails to state a claim for violation of his due
Finally, Plaintiff alleges that his Eighth Amendment rights have been violated, although he
does not explain how. The Eighth Amendment protects prisoners from "extreme deprivations of
basic human needs or serious or significant pain or injury." Smith v. Ozmint, 578 F.3d 246, 255
(4th Cir. 2009). It is inapplicable to an alleged seizure of reading materials from a prison cell.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge (Dkt. No. 56) as the Order of the Court and GRANTS Defendants' motion to
dismiss (Dkt. No. 34). All other pending motions are DENIED AS MOOT.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
March s-, 2018
Charleston, South Carolina
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