Rush v. Patterson et al

Filing 70

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Report and Recommendation 63 is adopted, thus the Defendants' motion summary judgment 46 is GRANTED, Plaintiffs motion for partial summary judgment 55 is DENIED, and this case is hereby DISMISSED. Signed by Honorable Richard M Gergel on 1/19/2012. (kric, )

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IN THE UNITED STATES DISTRICT COURT
P!=C::1\'~8
FOR THE DISTRICT OF SOUTH CAROLINA', ~. c· .'
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ZOIZ JAN I Cj A
Tony Rush,
Plaintiff,
v.
Dennis Patterson, individually and as
Director of Operations; Warden McKither
Bodison; Fred Thompson, A/W; James
Blackwell, DHO; Richard Turner, DHO;
Warden Michael McCall, each in his
individual capacity,
Defendants.

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Case No. 8:10-1937-RMG-JDA

ORDER

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In this pro se action, Plaintiff alleges that Defendants violated his civil rights and that he
is entitled to relief pursuant to 42 U.S.C. §1983. Pursuant to 28 U.S.C. § 636(b) and Local Rule
73.02(b)(2)(d)&(e), DSC, the case was automatically referred to the United States Magistrate
Judge for all pretrial proceedings and a Report and Recommendation.

On March 17, 2011,

Defendants filed a motion for summary judgment, and on March 18, 2011, Defendants tiled a
supplement to their motion for summary judgment. (Dkt. Nos. 46, 49). On April 22, 2011,
Plaintiff filed a cross motion for partial summary judgment, in which Plaintiff responded to
Defendants' motion for summary judgment and requested partial summary judgment. (Dkt. No.
55). On May 9, 2011, Defendants filed a response in opposition to Plaintiffs cross motion for
partial summary judgment, and on May 20,2011, Plaintiff filed a reply to Defendants' response.
(Dkt. Nos. 60, 62).
On November 30, 2011, the Magistrate Judge issued a Report and Recommendation
recommending that the Court grant the Defendants' motion and deny Plaintiffs motion. (Dkt.
No. 63). On December 19, 2011, Plaintiff filed objections to the Report and Recommendation.
Page 10f6

(Dkt. No. 68). As explained herein, the Court agrees with the conclusion of the Magistrate's
Report and Recommendation and therefore grants Defendants' motion and denies Plaintiff s
motion.
LAW/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 (1976). This Court is charged with making a
de novo determination of those portions of the Report and Recommendation to which specific
objections are made, and this court may "accept, reject, or modify, in whole or in part, the
findings and 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." !d. 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).
Plaintiff, who has at all times relevant to this action been incarcerated with the South
Carolina Department of Corrections ("SCDC"), alleges that Defendants violated his due process
rights during a disciplinary proceeding at the prison. (Dkt. No.1). Plaintiff was charged with,
and found guilty of, assisting in a homicide which occurred in the prison. His sanction was a
loss of 30 days of good time credit, loss of 540 days of canteen, telephone and visitation
privileges and 360 days of disciplinary detention. Plaintiff alleges that Defendants wrongfully
refused Plaintiff s requests to call live witnesses to testify at the disciplinary hearing and to allow
Plaintiff to present documentary evidence at the disciplinary hearing. (ld. at 5-6). Plaintiff also
alleges that Defendant Bodison "falsified his report and was lying in his testimony." (Jd at 6).

Page 2 of6

In order to prevail on either a procedural or substantive due process claim, an inmate
must first demonstrate that he was deprived of "life, liberty, or property" by governmental
action. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). None of Plaintiffs allegations
,

could be construed as alleging a deprivation of life or property as those terms are used in this
context.

Further, even assuming, arguendo, that Plaintiffs punishment for the institutional

charge constitutes a deprivation of Plaintiffs liberty and triggers due process rights, the Court
finds that Plaintiff received appropriate due process at his disciplinary hearing.
In Wo?fTv. McDonnell, 418 U.S. 539 (1974), the Supreme Court considered how prison
disciplinary proceedings must be structured in order to comport with the demands of the Due
Process Clause of the Fourteenth Amendment. The Court emphasized that "[p ]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply." Id. at 556. "[T]here must be mutual accommodation
between institutional needs and objectives and the provisions of the Constitution that are of
general application." Id. The Court ultimately set forth five requirements of due process in a
prison disciplinary proceeding where a liberty interest is at stake: (1) the right to appear before
an impartial decision-making body; (2) twenty-four hour advance written notice of the charges;
(3) an opportunity to call witnesses and present documentary evidence, provided the presentation
of such does not threaten institutional safety or correctional goals; (4) assistance from an inmate
representative, if the charged inmate is illiterate or if complex issues are involved; and (5) a
written decision by the fact finders as to the evidence relied upon and the rationale behind their
disciplinary action. Id. at 563-70.
Here, Defendants argue, as set forth in the affidavit of the SCDC Operations Coordinator,
that they followed an established inmate disciplinary process in conducting the disciplinary

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hearing and considering the appeals relating to Plaintiffs charge. (Dkt. No. 46-2 at 3-4). With
regard to the five requirements set forth in Wolff, Plaintiff only alleges that he was denied the
opportunity to call witnesses and present documentary evidence in violation of requirement
number 3. 1 In discussing this particular requirement, the Supreme Court explained:
We are also of the opinion that the inmate facing disciplinary proceedings should
be allowed to call witnesses and present documentary evidence in his defense
when permitting him to do so will not be unduly hazardous to institutional safety
or correctional goals. Ordinarily, the right to present evidence is basic to a fair
hearing; but the unrestricted right to call witnesses from the prison population
carries obvious potential for disruption and for interference with the swift
punishment that in individual cases may be essential to carrying out the
correctional program of the institution. We should not be too ready to exercise
oversight and put aside the judgment of prison administrators. It may be that an
individual threatened with serious sanctions would normally be entitled to present
witnesses and relevant documentary evidence; but here we must balance the
inmate's interest in avoiding loss of good time against the needs of the prison, and
some amount of flexibility and accommodation is required. Prison officials must
have the necessary discretion to keep the hearing within reasonable limits and to
refuse to call witnesses that may create a risk of reprisal or undermine authority,
as well as to limit access to other inmates to collect statements or to compile other
documentary evidence. Although we do not prescribe it, it would be useful for the
Committee to state its reason for refusing to call a witness, whether it be for
irrelevance, lack of necessity, or the hazards presented in individual cases. Any
less flexible rule appears untenable as a constitutional matter, at least on the
record made in this case. The operation of a correctional institution is at best an
extraordinarily difficult undertaking. Many prison officials, on the spot and with
the responsibility for the safety of inmates and staff, are reluctant to extend the
unqualified right to call witnesses; and in our view, they must have the necessary
discretion without being subject to unduly crippling constitutional impediments.
There is this much play in the joints of the Due Process Clause, and we stop short
of imposing a more demanding rule with respect to witnesses and documents.

Plaintiff also alleges in his cross motion for partial summary judgment that Defendant Turner
was not an impartial fact finder because he had already reviewed the evidence prior to the
hearing, rushed Plaintiff during his defense, and "made statements like 'I don't care rather [sic]
you do or not' after he asked the plaintiff do he [sic] understand and the plaintiff said he did not."
(See Dkt. No. 55-1 at 12-13). The Court finds that these unsupported assertions, which were not
alleged in Plaintiff s Complaint, are insufficient to raise a genuine issue of material fact as to
whether Plaintiff received an impartial fact finder at his disciplinary hearing.
I

Page 4 of6

Id at 566-67.

Defendants argue, and Plaintiff does not dispute, that all witnesses Plaintiff

requested to appear in person had either given statements to or were interviewed by SLED, and
the SLED report provided a synopsis of the statements. (Dkt. No. 46-1 at 11-12; see also Dkt.
No. 55-1 at 10 (Plaintiff arguing that the witnesses he wanted to call "were the witnesses who
gave testimonial statements and interviews to the SLED investigators and the SLED
investigators themselves"». Thus, to the extent the hearing officer should have allowed Plaintiff
to call live witnesses at the disciplinary hearing, such error was harmless. See Brown v. Braxton,
373 F.3d 501, 508 (4th Cir. 2004) (holding that Plaintiff could not succeed on due process claim
where he had "not demonstrated that he was harmed by [a requested witness] testifying in
writing rather than in person"); Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (holding
potential due process claim harmless where accused inmate did not explain how live testimony
would have helped him); see also Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) (holding
that "[i]n the absence of a recent pattern of violations, ... it is entirely inappropriate to overturn
the outcome of a prison disciplinary proceeding because of a procedural error without making
the normal appellate assessment as to whether the error was harmless or prejudicial). Further,
although Plaintiff alleges that he was denied the right to present documentary evidence at the
disciplinary hearing, there is no evidence of this request, what documents he intended to
introduce, or how the documents would have helped him. Thus, the Court finds that Plaintiffs
allegations regarding Defendants' refusal to allow Plaintiff to present live witnesses and
documentary evidence do not create a genuine issue of material fact as to whether his due
process rights were violated.

Page 5 of6

CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has not created a genuine issue of
material fact as to whether Defendants violated his due process rights at his disciplinary hearing?
Thus, Defendants' motion summary judgment is GRANTED, Plaintiffs motion for partial
summary judgment is DENIED, and this case is hereby DISMISSED.
AND IT IS SO ORDERED.

Richard Mark G
United States District Court Judge
January ~, 2012
Charleston, South Carolina

2 Because the Court finds that the facts, viewed in the light most favorable to the Plaintiff, do not
establish a violation of a constitutional right, the Court need not consider Defendants' qualified
immunity defense. See McKinney v. Richland Cnty. SherifJ's Dept., 431 F.3d 415, 417 (4th Cir.
2005) (explaining that the courts need not apply the qualified immunity doctrine and analyze
whether a right was clearly established if the court finds that the facts do not establish a violation
of a constitutional right in the first place).

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