McGaha v. Baily et al

Filing 16

ORDER ADOPTING 9 Report and Recommendations; The case must be dismissed without prejudice and without service of process. Signed by Honorable Richard M Gergel on 7/7/2011. (mbro, )

UNITED STATES DISTRICT COURT
RECflVElj
DISTRICT OF SOUTH CAROLrRf~C. C!J]'L: 'y;-!r:"T,~H. SC

ZOIl JUL -l A II: 38
Marshall DeWitt McGaha, #155836,
a.k.a. Marshall D. McGaha, Jr.,
Plaintiff,
v.

Sgt. Baily;
Lt. Gross;
Jim Doriety, Directory;
Scott Bodiford, Administrator;
Lottie Gibson, City Counsel,
Defendants.

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CIA No. 6:11-1477-RMG

ORDER

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This matter is before the court in Plaintiff's pro se civil action. In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), DSC, this matter was referred to United
States Magistrate Judge Kevin F. McDonald for pre-trial proceedings and a Report and
Recommendation. On June 27, 2011, the Magistrate Judge issued a Report recommending that
the above-captioned case be dismissed without prejudice and without service of process. (Dkt.
No.9). The Magistrate Judge advised Petitioner of the procedures and requirements for filing
objections to the Report and Recommendation and the serious consequences if they failed to do
so. Plaintiff has objected. As explained herein, this Court conducted a de novo review of the
Record and agrees with the Magistrate Judge's Report and adopts it as the Order of this Court.
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.Ct. 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)(1). This Court may also "receive further evidence or recommit the matter to the
magistrate with instructions." ld.

In the absence of specific objections to the Report and

Recommendation, this Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
After reviewing the record of this matter de novo, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Plaintifrs Objections, the Court agrees with the
conclusions of the Magistrate Judge.

Here, Plaintifrs Complaint focuses on the lack of access

to a law library and legal materials, the lack of internet access for prisoners, and the monitoring
of prisoner telephone calls.
Plaintiff is not denied of any constitutional right of access to courts on account of the
absence of a law library at the Greenville County Detention Center. The United States Court of
Appeals for the Fourth Circuit has ruled that the Constitution of the United States does not
require every local jail even to have a law library. Magee v. Waters, 810 F.2d 451, 452 (4th Cir.
1987). County jails are generally short-term facilities, wherein "the brevity of confinement does
not permit sufficient time for petition to courts." ld. Further, Plaintiff has not alleged a specific
injury from his lack of access to legal materials at the Greenville County Detention Center. See

id. (prisoner must show specific injury or actual harm from absence of law library when the
prisoner was "housed only temporarily in a local jail".) Namely, a plaintiff must show an "actual
injury" resulting from the loss or absence of his or her legal materials. Cf Lewis v. Casey, 518
U.S. 343, 349 (1996) (holding that prisoner must demonstrate that a non-frivolous legal claim
had been frustrated or was being impeded); and Michau v. Charleston County, S.c., 434 F.3d
725, 728 (4th Cir. 2006) (in access to court claim, inmate must allege and show that he has

suffered an actual injury or specific harm to his litigation efforts as a result of the defendant's
actions).
Moreover, this federal court may take judicial notice of factual information located in
postings on governmental websites in the United States. See Williams v. Long, 585 F. Supp. 2d
69, 686-88 & nA (D. Md. 2008) (collecting cases indicating that postings on government
websites are inherently authentic or self-authenticating). After consulting the website for the
Public Index for the Greenville County Clerk of Court, the Public Index reveals that Thomas
Hoskinson, Esq., and Christopher Scalzo, Esq., of the Greenville County Public Defender's
Office are counsel of record for Plaintiff in his pending criminal case, State v. McGaha. Thus,
since Plaintiff is represented by counsel in his pending criminal case, he has no need for a law
library. Jones v. Lexington County Detention Center, 586 F. Supp. 2d 444, 448 n.2 (D.S.C.
2008) ("Furthermore, to the extent Plaintiff is saying his lack of access to legal materials is
related to the criminal matter for which he has been incarcerated, this claim fails as a matter of
law, as the state is only required to provide criminal defendants legal counsel, not legal research
materials.") (citation omitted). Further, under longstanding South Carolina case law, Plaintiff
cannot file pro se motions (other than a motion to relieve counsel) in his pending criminal case.
State v. Stuckey, 508 S.E.2d. 564 (S.C. 1998).

Additionally, Plaintiffs lack of access to the legal materials on the internet is not a
constitutional violation. Holloway v. Magness, No. 5:07CV00088 JLH-BD, 2011 WL 204891, at
*7 (E.D. Ark. Jan. 21, 2011) (First Amendment does not require "that the government provide
telephones, videoconferencing, email, or any of the other marvelous forms of technology that
allow instantaneous communication across geographical distances; the First Amendment is a
limit on the exercise of governmental power, not a source of positive obligation.").

The monitoring of prisoner phone calls by the Greenville County Detention Center is also
not a constitutional violation. Martinez v. Pettiford, C.A. No. 8:07-1646-RBH-BHH, 2008 WL
867888 (D.S.C. March 24, 2008) (upholding federal prisoner's disciplinary proceeding where
prisoner circumvented monitoring of inmate phone system by use of three-way call).
Plaintiffs Complaint which implicitly relies on minimum standards for detention
facilities is misplaced because violations of recommended standards do not amount to a
constitutional violation. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 n. 13
(1991); Rhodes v. Chapman, 452 U.S. 337, 350

n.13 (1981) (recommendations by such

organizations "may be helpful and relevant with respect to some questions, but 'they simply do
not establish the constitutional minima; rather they establish goals recommended by the
organization in question. "').
Lastly, Plaintiff lists Defendant Lottie Gibson as a member of "City Counsel," when in
fact she is a member of Greenville County CounseL As a result, she has legislative immunity.
See Bogan v. Scott-Harris, 523 U.S. 44 (1998) (legislators at all levels of government are entitled
to immunity for "legislative activities").
Accordingly, the Court adopts the Report and Recommendation by reference in this
Order. Therefore, the case must be dismissed without prejudice and without service of process.
AND IT IS SO ORDERED.

(f:;~
Richard Mark r el
United States Distr t Court Judge

July~, 2011
Charleston, South Carolina