Mickell v. Stirling et al
ORDER RULING ON REPORT AND RECOMMENDATION 95 . The Court GRANTS Defendants motion for summary judgment [ECF No. 56] and DISMISSES Plaintiffs claims brought under 42 U.S.C. § 1983 with prejudice Signed by Honorable R Bryan Harwell on 2/15/2017. (kric, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Darrell J. Mickell,
Bryan Stirling, C. Reynolds,
Mr. Davis, Mr. Sharpe, Mr. Graham, )
Mr. Nolan, Mr. Williams, Ms. Shaw, )
and Ms. Smith,
Civil Action No.: 6:15-cv-04656-RBH
Plaintiff Darrell J. Mickell, a state prisoner proceeding pro se, brings this action pursuant to 42
U.S.C. § 1983 against the above-captioned Defendants alleging violations of his constitutional rights.
Defendants have filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
See ECF No. 56. The matter is before the Court for review of the Report and Recommendation (“R &
R”) of United States Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02 for the District of South Carolina.1 See R & R [ECF No. 95].
The Magistrate Judge recommends that the Court grant Defendants’ motion for summary judgment.
R & R at 7. Plaintiff has filed timely objections to the R & R. See ECF No. 97.
Review of the R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
The Magistrate Judge reviewed Plaintiff’s verified complaint pursuant to the screening provisions of 28
U.S.C. §§ 1915(e)(2) and 1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se
litigants. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). But see Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985) (“Principles requiring generous construction of pro se complaints are not, however,
without limits. Gordon directs district courts to construe pro se complaints liberally. It does not require those courts
to conjure up questions never squarely presented to them.”).
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 must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
Summary judgment is appropriate when no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407,
413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The facts and
inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving
party, Reyazuddin, 789 F.3d at 413, but the Court “cannot weigh the evidence or make credibility
determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
In his verified complaint,3 Plaintiff alleges Defendants subjected him to unconstitutional
conditions of confinement at Lee Correctional Institution (“LCI”) in Bishopville, South Carolina.4 See
Complaint [ECF No. 1]. Plaintiff brings claims pursuant to 42 U.S.C. § 1983 alleging violations of the
Eighth Amendment’s prohibition against cruel and unusual punishment. Id. He asserts three claims
relating to the time period when he was confined in the Restricted Housing Unit (“RHU”)5 at LCI,
alleging he was (1) denied regular showers, (2) deprived of adequate lighting in his cell, and (3) served
cold food. Plaintiff asserts a fourth claim relating to the time period when he was returned to general
population at LCI, alleging he was housed in a cell that did not contain a locker or table. The Magistrate
Judge recommends granting Defendants’ motion for summary judgment on all claims. R & R at 4-7.
Plaintiff has filed timely objections to the R & R. See Pl.’s Objs. [ECF No. 97]. Defendants have not
filed a reply to Plaintiff’s objections.
The R & R contains a full summary of the procedural and factual history of this case, which the Court adopts
and incorporates by reference without repeating here.
Plaintiff’s verified amended complaint is viewed as an opposing affidavit and may, standing alone, defeat
summary judgment if it contains allegations that are based on personal knowledge. See Williams v. Griffin, 952 F.2d
820, 823 (4th Cir. 1991).
The Court previously denied Plaintiff’s motion for a preliminary injunction. See ECF No. 53.
“RHU management is different from certain other housing units of LCI. RHU is often referred to as the
prison within the prison. Security of inmates is managed in different ways from other housing units. Inmates have
less freedoms than inmates housed in other areas of LCI.” Davis Affidavit [ECF No. 56-3] at ¶ 5.
Plaintiff first objects to the Magistrate Judge’s finding that Defendants are entitled to qualified
immunity. See R & R at 7. Plaintiff asserts the “Magistrate Judge is not authorized to raise defenses
on behalf of the Defendants,” and he contends that while Defendants “raised various defenses, qualified
immunity was not one of them.” Pl.’s Objs. at 1-2. Plaintiff further contends “Defendants did not raise
a qualified immunity defense . . . within the motion for summary judgment.” Id. at 7. Thus, Plaintiff
claims the Magistrate Judge erred by sua sponte invoking the affirmative defense of qualified immunity.
Qualified immunity is an affirmative defense to liability under § 1983, and the defendant bears
the burden of pleading it. Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016); Sales v. Grant,
224 F.3d 293, 296 (4th Cir. 2000). Qualified immunity “shields government officials performing
discretionary functions from personal-capacity liability for civil damages under § 1983, insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013) (internal
quotation marks omitted). A court must conduct a two-step inquiry when determining whether qualified
immunity applies. Jones, 820 F.3d at 691. “First, a court must decide whether the facts that a plaintiff
has shown make out a violation of a constitutional right. Second, the court must consider whether the
right at issue was ‘clearly established’ at the time of the alleged misconduct.” Id. (internal citation
Although Defendants plead qualified immunity in their answer to Plaintiff’s verified complaint,
they do not argue or even mention qualified immunity in their motion for summary judgment. Compare
Answer [ECF No. 30] at ¶ 12, with Defs.’ Motion & Memo. [ECF Nos. 56 & 56-1]. Instead,
Defendants’ arguments in their summary judgment motion focus wholly on the merits of Plaintiff’s
conditions of confinement claims,6 and Defendants do not make the distinct argument that their alleged
conduct did not violate a clearly established constitutional or statutory right of which a reasonable
person would have known. Moreover, Defendants have not filed a reply rebutting Plaintiff’s objection.
The Fourth Circuit has flatly stated that “an issue of qualified immunity [is] distinct from the question
of whether a constitutional violation occurred,” held that a qualified immunity defense cursorily raised
in an answer and not clearly raised in a motion for summary judgment is deemed abandoned, and
declined to consider qualified immunity sua sponte in a § 1983 case. Buffington v. Baltimore Cty., 913
F.2d 113, 120-22 (4th Cir. 1990).7 Consequently, Defendants can be deemed to have waived their
qualified immunity defense. Qualified immunity is not a proper basis for granting summary judgment,
and the Court respectfully rejects the portion of the R & R finding Defendants are entitled to qualified
immunity. Nevertheless, Defendants are still entitled to summary judgment because Plaintiff’s claims
fail on the merits, as explained below.
Plaintiff also objects to the Magistrate Judge’s determination that none of his four conditions
of confinement claims amount to a constitutional violation. See R & R at 4-6.
Defendants also address Plaintiff’s claims by applying Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and cases citing Bivens. See Defs.’ Mem. at 7-8, 10. The Court notes
Bivens is inapplicable because all Defendants are state—not federal— officials. See generally Bivens, 403 U.S. at
397 (establishing a direct cause of action under the United States Constitution for violations of federal constitutional
rights perpetrated by federal officials).
See also Sales, 224 F.3d at 296-97 (finding the defendants “waived their right to assert qualified immunity”
when they only cursorily mentioned the defense in their answer to a § 1983 complaint and omitted it from their
motion for summary judgment); Brooks v. Davis, 141 F.3d 1157, 1998 W L 196739, at *1 n.1 (4th Cir. 1998)
(unpublished table decision) (citing Buffington and holding the defendants waived their qualified immunity
defense— “raised only in their answer”— “by failing to raise it in their motion for summary judgment or their
objections to the magistrate judge’s report”); Martin v. Lott, No. 3:07-cv-03782-JFA, 2010 W L 547175, at *4
(D.S.C. Feb. 9, 2010) (citing Buffington and Sales and “declin[ing] to assess the merits of a qualified immunity
defense” because the defendants did not raise it in their motion for summary judgment), aff’d, 407 F. App’x 761 (4th
The Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments,”
protects inmates from inhumane treatment and conditions during incarceration. Williams v. Benjamin,
77 F.3d 756, 761 (4th Cir. 1996). To succeed on an Eighth Amendment claim that a prisoner was not
provided humane conditions of confinement, the prisoner must prove two components: “(1) that the
deprivation of [a] basic human need was objectively sufficiently serious, and (2) that subjectively the
officials act[ed] with a sufficiently culpable state of mind.” De’Lonta v. Angelone, 330 F.3d 630, 634
(4th Cir. 2003) (alterations in original) (internal quotation marks omitted). “[T]he constitutional
prohibition against the infliction of cruel and unusual punishment does not mandate comfortable
prisons, and only those deprivations denying the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment violation.” Shakka v. Smith, 71 F.3d 162,
166 (4th Cir. 1995) (internal quotation marks omitted). “Only extreme deprivations are adequate to
satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement.”
De’Lonta, 330 F.3d at 634. “In order to demonstrate such an extreme deprivation, a prisoner must
allege a serious or significant physical or emotional injury resulting from the challenged conditions, or
demonstrate a substantial risk of such serious harm resulting from the prisoner’s exposure to the
challenged conditions.” Id. (internal quotation marks and citations omitted).
Viewing the facts and drawing all reasonable inferences in a light most favorable to Plaintiff,
the Court agrees with the Magistrate Judge that Defendants are entitled to summary judgment on all four
of Plaintiff’s conditions of confinement claims.8 Regarding the objective component of the Eighth
Amendment analysis, Plaintiff has not produced evidence of a serious or significant physical or
In reaching this finding, the Court has thoroughly reviewed the entire record, including Plaintiff’s verified
complaint and attached exhibits, the exhibits attached to Defendants’ motion for summary judgment, and the exhibits
attached to Plaintiff’s response in opposition. See ECF Nos. 1, 56, & 88.
emotional injury resulting from any of the challenged conditions, nor has he demonstrated a substantial
risk of such serious harm resulting from his exposure to any of the challenged conditions, as fully
explained in the R & R.9 See R & R at 4-6. For this reason alone, Defendants are entitled to summary
judgment. See Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) (“[T]o withstand summary
judgment on an Eighth Amendment challenge to prison conditions a plaintiff must produce evidence
of a serious or significant physical or emotional injury resulting from the challenged conditions. . . . If
a prisoner has not suffered serious or significant physical or mental injury as a result of the challenged
condition, he simply has not been subjected to cruel and unusual punishment within the meaning of the
Amendment.”). Moreover, even assuming arguendo that the objective component is met, the evidence
does not support a finding that Defendants acted with a sufficiently culpable state of mind, as fully
explained in the R & R. See R & R at 4-6.
Regarding Plaintiff’s claim that he was denied regular showers—even for as long as thirty-seven consecutive
days— the Court notes the Fourth Circuit recently affirmed (in an unpublished opinion) another court’s grant of
summary judgment on a similar claim and facts. See Collins v. Padula, No. 2:12-cv-03112-DCN-BHH, 2014 W L
1319103 (D.S.C. Feb. 11, 2014), R & R adopted in part, 2014 W L 1318978 (D.S.C. Mar. 31, 2014), aff’d, 582 F.
App’x 258 (4th Cir. 2014). In Collins, the plaintiff alleged that he was housed in the prison’s special management
unit, that prison policy dictated a shower be provided three times per week there, “that he sometimes d[id] not receive
a shower for over 30 days,” and that he contracted a fungus on his feet and in his ears due to the denial of showers.
2014 W L 1319103, at *3, *7. The magistrate judge recommended granting summary judgment for defendants on
the shower claim, and the district court agreed and granted summary judgment. See 2014 W L 1318978, at *3 (D.S.C.
Mar. 31, 2014) (addressing the plaintiff’s objection “that defendants violated his rights because ‘he was only
receiving a shower once a Month from June 2012 until Jan 2013 and in the Month of October [i.e., at least thirty-one
days] received no Shower’”; and concluding the plaintiff’s “claim regarding his limited opportunities to shower fails
because it does not arise to the level of deprivation countenanced by the Eighth Amendment,” specifically because
the plaintiff “has not alleged any serious or significant emotional or physical injury that has resulted from the
infrequency of his showers), aff’d, 582 F. App’x 258 (4th Cir. 2014) (“W e have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated by the district court.”). Other courts have found no
Eighth Amendment violation with shower delays comparable to that in Plaintiff’s case. See, e.g., Landman v.
Royster, 333 F. Supp. 621, 650 (E.D. Va. 1971) (“There was evidence . . . that some inmates were not permitted to
shower during extended stays in solitary. Relief on this score will be denied because there is no proof that at such
times they were also denied the necessary sanitary items so that they might wash in their cells.”); Waring v. Meachum,
175 F. Supp. 2d 230, 241 (D. Conn. 2001) (citing Fisher v. Barbieri, 3:95CV913 (D. Conn. May 19, 1999), in which
the court found no Eighth Amendment violation “where showers were prohibited during [a] twenty[-]eight day
lockdown”); Wright v. DeBruyn, No. 3:93-CV-448RP, 1996 W L 441879, at *7 (N.D. Ind. June 4, 1996) (finding
no Eighth Amendment violation where showers were suspended for “three to four weeks after the initiation of [a]
lockdown” because “soap was immediately available to offenders”).
The Court finds summary judgment is proper on all claims because there is no genuine issue of
material fact as to either the objective or subjective components of the Eighth Amendment analysis.
See Helling v. McKinney, 509 U.S. 25, 35 (1993) (stating a plaintiff must satisfy “both the subjective
and objective elements necessary to prove an Eighth Amendment violation”).
Plaintiff’s Other Objections
Plaintiff presents several other objections to the R & R. First, he challenges the Magistrate
Judge’s statement that “the plaintiff describes himself as mentally-ill.” Pl.’s Objs. at 1; see R & R at
1 (citing Compl. at ¶ 43). Plaintiff contends he “is in fact mentally ill” and this fact can be “checked
and shown.” Pl.’s Objs. at 1. The Court notes the Magistrate Judge was simply quoting from Plaintiff’s
complaint,10 and in any event, the “mentally-ill” description is of no consequence to the Court’s
disposition of Plaintiff’s claims.
Second, Plaintiff asserts, “The Magistrate Judge has been biased and prejudiced against the
Plaintiff’s case from the outset and continues to show his tactic for assisting and shielding the
Defendants against justice.” Pl.’s Objs. at 1. Plaintiff further claims “the Magistrate Judge has shown
that he is for the Defendants regardless of the genuine issue of material fact or with any regard to
justice.” Id. at 2. The Court finds Plaintiff’s baseless assertions are wholly meritless. See generally
Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.”); Jones v. Luthi, 586 F. Supp. 2d 595, 604-05 (D.S.C. 2008)
(“[T]o the extent Plaintiff is objecting to the Reports and Recommendations due to the Magistrate
Judge’s alleged bias, that objection is wholly without merit. . . . The fact that the Magistrate Judge
recommended ruling against Plaintiff . . . is no indication of bias.”), aff’d, 324 F. App’x 253 (4th Cir.
See Compl. at ¶ 43 (“Plaintiff is classified as mentally ill.”).
Third, Plaintiff cites portions of the South Carolina Constitution and the South Carolina Code,
alleging Defendants are not complying with state law governing the conditions of prisons. Pl.’s Objs.
at 2, 4. However, Plaintiff has filed this action pursuant to 42 U.S.C. § 1983,11 and “violations of state
law are not cognizable under § 1983.”12 Love v. Pepersack, 47 F.3d 120, 124 n.5 (4th Cir. 1995). See
also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (“Section 1983 was intended to protect only
federal rights guaranteed by federal law . . . .”). Thus, to the extent Plaintiff claims Defendants are not
complying with South Carolina law governing the conditions of prisons, the Court will not address this
The remainder of Plaintiff’s objections consists of repetition of his original allegations, along
with summaries of legal standards and various cases. See, e.g., Pl.’s Objs. at 1, 3-4, 6. The Court notes
these objections do not point to any specific error in the R & R, and therefore the Court need not address
them. See Orpiano, 687 F.2d at 47.
See Compl. at ¶ 1 (“This is a civil action authorized by 42 U.S.C. section 1983 to redress the deprivation,
under color of state law, of rights secured by the Constitution of the United States.”).
Similarly, Plaintiff appears to challenge Defendants’ alleged failure to comply with the “rules and
regulations” of the South Carolina Department of Corrections. Pl.’s Objs. at 4. The law is settled that a prison
official’s alleged failure to follow institutional policies or procedures does not by itself amount to a constitutional
violation. See Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir. 2013) (“[P]rison officials’ failure to follow
internal prison policies are not actionable under § 1983 unless the alleged breach of policy rises to the level of a
constitutional violation.”); Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992) (finding violations of prison rules which
fail to reach the level of a constitutional violation are not actionable under § 1983).
To the extent Plaintiff’s complaint could be construed to assert state law claims over which the Court would
possess supplemental jurisdiction, see 28 U.S.C. § 1367(a), such claims should not proceed, given the Court’s
dismissal of all federal claims. See 28 U.S.C. § 1367(c)(3) (stating a district court may decline to exercise
supplemental jurisdiction over a claim if it has dismissed all claims over which it has original jurisdiction.”); United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“It has consistently been recognized that pendent
jurisdiction is a doctrine of discretion, not of plaintiff’s right. . . . Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”).
The Court has thoroughly reviewed the entire record, including the Magistrate Judge’s R & R
and Plaintiff’s objections. The Court has conducted a de novo review of those portions of the R & R
to which Plaintiff specifically objects. For the reasons stated in this Order, the Court overrules all of
Plaintiff’s objections and adopts the R & R [ECF No. 95], except the portion regarding qualified
immunity. Accordingly, the Court GRANTS Defendants’ motion for summary judgment [ECF No. 56]
and DISMISSES Plaintiff’s claims brought under 42 U.S.C. § 1983 with prejudice.14
IT IS SO ORDERED.
Florence, South Carolina
February 15, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Plaintiff’s state law claims, if any, are DISM ISSED without prejudice pursuant to 28 U.S.C. § 1367(c).
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