Fair v. Stirling et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION 12 . The Court adopts the Magistrate Judge's Report and Recommendation (Dkt. No. 12) as the order of this Court. Accordingly, this action is dismissed without prejudice and without service of process. Signed by Honorable Richard M Gergel on 2/4/2015. (kric, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Thomas M. Fair, Jr., # 75721,
Plaintiff,
vs.
Brian P. Stirling, Director of the
South Carolina Department of
Corrections, et aI.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 6: 14-cv-4882-RMG
ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 12), recommending that this Court summarily dismiss this action
without prejudice and without service of process because this action is based upon a challenge to
Plaintiffs placement or classification in security detention under the Prison Rape Elimination
Act (known as PREA-SD), which is not actionable. (Dkt. No. 12). Plaintiff has filed objections
to the R & R, continuing to argue that his placement in PREA-SD is not proper under prison
policies, but he fails to address the essential legal issue that his classification or placement in
PREA-SD is not actionable in federal court. (Dkt. No. 14).
Le~al

Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). The 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 is charged with making a de novo determination of those portions

of the R & R or specified proposed findings or recommendations to which objection is made.

Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting 28 U.S.C.

§ 636(b)(l)); accord Fed. R. Civ. P. 72(b).
Discussion

The Court has carefully reviewed the pleadings, the R & R, and the Plaintiff s objections
and concludes that the Magistrate Judge correctly applied the relevant law to the operative facts
in this matter. Plaintiff s claims are based upon his allegations that officials violated the PREA
and SCDC policy. However, PREA does not grant prisoners specific rights and cannot be the
basis of a Section 1983 claim. De 'IonIa v. Clarke, No.7: ll-cv-00483, 2013 WL 209489 at *3
(W.D. Va. Jan. 14,2013). It is also well-settled that a violation of prison policy does not, in and
of itself, amount to a constitutional violation or provide prisoners with a liberty interest in a
particular classification or whether or not they are placed in administrative segregation. See,

e.g., Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C.l992).
Conclusion

For the reasons stated above, the Court ADOPTS the Magistrate Judge's Report and
Recommendation (Dkt. No. 12) as the order of this Court. Accordingly, this action is dismissed
without prejudice and without service of process.
AND IT IS SO ORDERED.

United States District Judge

-Y...,

February
2015
Charleston, South Carolina

-2­