-KFM Fair v. Ozmint et al

Filing 78

ORDER ADOPTING 73 Report and Recommendations; GRANTING 51 Motion for Summary Judgment, filed by R Hilton, Anthony Davis, James E Sligh, Jr, Anthony J Padula, Robert E Ward, Jon E Ozmint, C York, Bruce Oberman. Signed by Honorable Richard M Gergel on 5/2/2011. (mbro, )

IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF SOUTH CAROLINA
Thomas Marin Fair, Jr.,

Jon E. Ozmint, Director of the South
Carolina Department of Corrections,
individually and in his official capacity, el

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Plaintiff,
vs.

Defendants.

Civil Action No.6: lO-cv-1268-RMG

ORDER

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Plaintiff brought this action pursuant to 42 U.S.c. § 1983. As a result, this matter
was referred to a Magistrate Judge for pre-trial proceedings. The Magistrate Judge has

made a report and recommendation that Defendants' motion for summary judgment be
granted. (Dkt. No. 73).

The Plaintiff has objected. After a de novo review, this Court

adopts the recommendation of the Magistrate Judge.
Analysis
The magistrate judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261,270-71,96
S.C!. 549, 46 L.Ed.2d 483 (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, and this Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(I). This
Court may also "receive further evidence or recommit the matter to the magistrate with
instructions." Jd.

[n the absence of specific objections to the Report and

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Recommendation, this Court is not required to give any explanation for adopting the
recommendati on. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
In hi s complai nt, the plaintiff named as a defendant "The Rest of the Prison Rape
Elimination Act Review Committee, individually and in their official capacities," without
identifying anyone on the committee other than Defendant Sligh. (see Dkt. No. 51-2,
Sligh aff.

~'4).

It does not appear that any other members of the Committee were served

with the summons and complaint. The defendants argue that any claims against the
remaining members of the Committee should be dismissed as the plaintiff has failed to
show those members acted personally in the deprivation of his constitutional rights. See

Vinnedge v. Gibbs, F.2d 926, 928 (4th Cir. 1977) ("Having failed to allege any personal
connection between [the defendant] and any denial of [the plaintiff's] constitutional
rights. the action against him must fail."). This court agrees and any claims against the
"rest" of the PREA Review Committee fail as a matter of law.
The plaintiff further alleges that his placement in the Special Management Unit
("SMU") violates his due process rights. Federal courts are required to accord great
consideration to a correctional system's need to maintain order, discipline. and control.

Wolffv. McDonnell, 418 U.S. 539, 558-62 (1974). Furthermore,there is no constitutional
right for a state prisoner or federal prisoner to be housed in a particular institution, at a
particular custody level, or in a particular portion or unit of a correctional institution. See

Olim v. Wakinekono, 461 U.S. 238, 245-46 (1983). Thus, the placement and assignment
of inmates to particular institutions or units by state or federal corrections departments
are discretionary functions, and are not subject to review unless state or federal Jaw
places limitations on official discretion. Hayes v. Thompson. 726 F.2d 1015, 1016-1017

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& n.1 (4th Cir. 1984). In Sandin v. Conner, 515 U.S. 472 (1995), the United States

Supreme Court held that a change in the condition of a prisoner's confinement that does
not exceed the scope of the original sentence gives rise to a federally.protected liberty
interest only if it "imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." Id. at 484.

Defendant Sligh submitted an affidavit in support of the motion for summary
judgment in which he indicates that Congress enacted the PREA in 2003 in order to
establish a zero·tolerance policy regarding rape in prisons and other confinement
facilities. The purpose of the Act is to protect inmates in correctional facilities from
sexual abuse or sexual assault. The SCDC developed a policy to effect the mandates of
PREA. The policy provides that staff of a correctional facility who become aware that an
inmate has a "history ofland or prior convictions of sexual assaults" will forward this
information to the PREA Review Committee so that the Committee can make its own
review and take appropriate action. (Okt. No. 51-2, Sligh aff.

~2),

The PREA Review Committee is a multi-disciplinary committee that consists of
five members who meet to discuss inmates that have been referred to the Committee for
potential classification as sexual perpetrators. When a referral comes to the Committee,
the Committee investigates the individual's history and discusses all aspects of the case,
including the warden's referral and supporting documentation, the inmate's prior or
current mental health issues, the inmate's incarceration history, and any legal issues. The
Committee then makes a recommendation to the Deputy Director of Operations regarding
the inmate's classification. Sligh also avers that classification as a sexual perpetrator
under the PREA is not considered to be a permanent classification, and all inmates who

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receive this classification have infonnal reviews on a monthly basis and fonnal reviews
every six months. Sligh attests that security detention is not a fonn of punislunent, but is
designed to protect inmates within the SCDC. (Dkt. No. 51-2. Sligh aff.

7-8).

With regard to the plaintiff in particular, Sligh attests that the Committee
considered the plaintif-rs entire history since the beginning of his incarceration. Records
revealed that the plaintiff had been accused and found guilty of sexually assaulting
another inmate in July 2006. Accordingly, the Committee detennined that the plaintiff is
a sexual perpetrator and recommended , because of his specific history, that he be placed
in lockpup. (Dkt. No. 51-2, Sligh atf. 4). The plaintiff is in

lock~up ,

which consists of23

hours of lock down with one hour of recreation a day . Recreation is outside, but the
plaintiff is segregated from other inmates in order to protect those inmates. If there are no
discipline problems, the plaintiff is al lowed to shower three times a week. The plaintiff is
fed in his cell, and he has access to library books and other items. Given the plaintiffs
particular history, he is not double-celled but is in a single occupancy cell. Sligh attests
that the nature of the plaintiff's confinement does not exceed similar confinement for
inmates in similar situations in either duration or degree of restriction. (Dkt. No. 51-2,
Sligh aff. ~6).
Here, the plaintiff cannot show that he has a protected liberty interest in his
security or custody classification. In a similar case, Gadeson

\I.

Reynolds, C.A. No. 2:08-

3702-CMC-RSC. 2009 WL 4572872 (D.S.C. 2009). the plaintiff alleged that his due
process rights, his right to be free from cruel and unusual punislunent, and his double
jeopardy rights were violated when he was wrongfully placed in lock-up after it was

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determined that he was a sexual predator following review under the PREA. In that case,
the Honorable Cameron M. Currie, United States District Judge, opined:
This is not a difficult case. Plaintiff has no constitutional right to
placement in any particular custody classification. Neal v. Shimoda, 131
F.3d 818, 828 (9th Cir. 1997) ("[A1prisoner does not have a constitutional
right to be housed at a particular institution, ... (or] to receive a particular
security classification .... "); Neals v. Nonvood, 59 F.3d 530, 533 (5th Cir.
1995) ("(A] prison inmate does not have a protectable liberty or property
interest in his custodial classification and an inmate's disagreement with a
classification is insufficient to establish a constitutional violation.").
The same is true and this case and there is no evidence that Plaintiff's
classification, the conditions exceed the sentence imposed or create an atypical or
significant hardship in violation of a protected liberty interest. Thus, Defendant's are
entitled to judgment as a matter of law. Furthermore, to the extent the plaintiff argues
that the defendants have violated SCDC policies or procedwes in placing him in this
custody classification, even if this claim is true , violations of policies and procedures do
not rise to the level of a constitutional violation. See Riccio v. County of Fairfax,
Virginia, 907 F.2d 1459, 1469 (4th Cir.1990) (if state law grants more procedural rights

than the Constitution requires, a state' s failure to abide by that law is not a federal due
process issue).
The plaintiff also alleges that the conditions of his confinement violate his
constitutional rights. To succeed on any Eighth Amendment claim regarding conditions
of confinement, a prisoner must prove: (I) objectively, the deprivation of a basic human
need was sufficiently serious, and (2) subjectively, the prison officials acted with a
"sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298 (1991);
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). In order to demonstrate an

extreme deprivation, an individual "must produce evidence of a serious or significant

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physical or emotional injury resulting from the challenged conditions." See Srrickler v.
Waters, 989 F.2d 1375, 1381 (4th CiT 1993). The plaintiff has made no such showing.
.
Here, the plaintiff has failed to present any evidence of a serious physical or emotional
injury, much less evide nce of conduct on behalf of any of the defendants that was
deliberately indifferent to the plaintiffs serious medical or other needs. Accordingly. thi s
claims fai ls as well.
Plaintifrs Complaint also appears to all ege that his constitutional rights were
vio lated because the defendants failed to respo nd to his wri tten staff requests and/or
grievances. "The Constitution creates no entitlement to grievance procedures or access to
any such procedure voluntarily established by the state." Adams v. Rice, 40 F.3d 72, 75
(4th Cir.1994). Thus, to the extent the Complaint attempted to allege a cause of action
relate to grievance procedures-the claim fails as a matter of law.

Conclusion
Based on the above, Defendants' motion for summary j udgment is granted' .
(Dkt. No. 51) and this Court declines to exercise supplemental jurisdiction over any
claims arising under state law.

AND IT IS SO ORDERED.

Richard Mark
United States istrict Court Judge
Notwithstandi ng the above, the defendants in their individual capacities are entitled to
qualified immunity as described in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), and
its progeny as their conduct did not violate any clearly-established constitutional or
statutory rights of which a reasonable person should have known. Further, in their official
capacities, the defendants may not be sued under Section 1983 for damages as they are
not "persons" within the meaning of Section 1983 . Will v. Michigan Dep 't of State
Police, 49 1 U.S. 58, 64 (1989).
I

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May2:,.2011

Charleston. South Carolina

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