Rivera v. Byars et al

Filing 25

ORDER Accepting 12 Report and Recommendation although for differing reasons given Plaintiff's 14 Objections. Plaintiff's complaint is therefore DISMISSED with prejudice and without issuance and service of process. Signed by Magistrate Judge Jacquelyn D Austin on 10/24/13. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Kenneth Syncere Rivera,
a/k/a Kenneth Rivera,

)
)
)
Plaintiff,
)
)
v.
)
)
William R. Byars, Jr., Agency Director;
)
Sandra S. Bowie, Branch Chief Policy
)
Development; Robert Stevenson, III,
)
Warden,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 8:12-cv-02218-JMC
ORDER AND OPINION

This matter is now before the court upon the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 12), filed September 6, 2012, recommending the court
summarily dismiss pro se Plaintiff Kenneth Syncere Rivera’s (“Plaintiff”) § 1983 claim against
Defendants William R. Byars, Jr., Sandra S. Bowie, and Robert Stevenson, III (collectively
referred to as “Defendants”) challenging the denial of his request to receive a copy of the South
Carolina Department of Corrections (“SCDC”) policy concerning his custodial classification.
Plaintiff has filed his complaint pursuant to the in forma pauperis statute 28 U.S.C. § 1915. For
the reasons stated herein, the court ACCEPTS the magistrate judge’s Report and DISMISSES
Plaintiff’s complaint with prejudice and without issuance and service of process.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the magistrate judge’s Report is accurate, and the court adopts this

1

summary as its own. However, a brief recitation of the procedural background in this case is
warranted.
At the time of Plaintiff’s filings in the instant case, he was incarcerated in the Broad
River Correctional Institution (“BRCI”), a facility managed by SCDC. (ECF No. 14 at 1).
Plaintiff was classified as belonging to a security threat group (“STG”). Id.
Plaintiff filed a previous action against BRCI prison officials on July 27, 2012, claiming
that legal mail, personal mail, books, and other personal materials were taken from him in
violation of his constitutional rights. Rivera v. Long, Civil Action No. 8:12-00233-JMC-JDA
(D.S.C. 2012) (ECF No. 1). Plaintiff filed a motion to compel discovery in that case on August
8, 2012, in which he specifically requested, “[a]ny and all rules, regulations, and policies of
SCDC about Security Threat Group Prisoners housed in SMU – this includes Policy/Procedure
OP-21.01 ‘Security Threat Group’.” (ECF No. 60 (Civil Action No. 8:12-00233-JDC-JDA)).
The prison officials then moved for a protective order on August 22, 2012, contending that
“disclosing the contents of the [STG] policy to Plaintiff would but [sic] the security of SCDC in
jeopardy.” (ECF No. 75 at 3 (Civil Action No. 8:12-00233-JDC-JDA)). On September 6, 2012,
the magistrate judge granted the motion for a protective order agreeing that “the revelation of
this procedure to Plaintiff or other inmates would jeopardize the security of the institution.”
(ECF No. 92 (Civil Action No. 8:12-00233-JDC-JDA) (internal quotations and citation
omitted)).
Plaintiff filed the instant action on August 7, 2012 (ECF No. 1), while his previous case
was still pending. In this case, Plaintiff alleges Defendants violated the Universal Declaration of
Human Rights as well as the Fifth and Fourteenth Amendments by denying his request for a
copy of the Security Threat Group Policy OP 21.01. (ECF No. 1 at 3, 6). Plaintiff requests that

2

the court declare his rights have been violated, issue an injunction ordering Defendants to
provide him with a copy of the policy, and order punitive damages. Id. at 6-7.
The magistrate judge issued the Report on September 6, 2012, recommending that the
court summarily dismiss Plaintiff’s complaint in the instant case as duplicative of the complaint
that was pending in Civil Action No. 8:12-00233-JMC-JDA. (ECF No. 12). On September 7,
2012, Plaintiff filed Objections to the Report (“Objections”) (ECF No. 14) arguing that the
instant complaint was not duplicative. Plaintiff contends that in his previous action he was
challenging the allegedly unconstitutional search and seizure of his property under the First and
Fourth Amendment; whereas, in this action, Plaintiff claims a violation of the Fourteenth
Amendment based on Defendant’s refusal to disclose the STG policy. Id. at 1-2.
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The magistrate
judge makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility to make a final determination remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976).

The court is charged with making a de novo

determination of those portions of the Report and Recommendation to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Failure to
file specific objections constitutes a waiver of a party’s right to further judicial review, including
appellate review, if the recommendation is accepted by the district judge. See United States v.
Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir. 1984). In the absence of specific objections to the

3

magistrate judge’s Report, this court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
DISCUSSION
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
In light of the cases cited by Plaintiff, (see ECF No. 14 at 2), the court construes his
Fourteenth Amendment claim to be an allegation of a procedural due process violation. Such
claims are analyzed under a two-step framework. First, Plaintiff must establish that “there exists
a liberty or property interest which has been interfered with by the State”. Henderson v. Simms,
223 F.3d 267 (4th Cir. 2000) (quoting Kentucky Dep’t of Corrections v. Thompson, 490 U.S.
454, 460 (1989)). Second, the court “examines whether the procedures attendant upon that
deprivation were constitutionally sufficient.” Id.
The court finds that Plaintiff fails at step one of the procedural due process analysis. Plaintiff
has not clearly indicated any deprivation from Defendant’s refusal to provide him a copy of the
STG policy. To the extent Plaintiff challenges his STG designation or his custodial classification
as a result of the STG policy, the court considers that he may be attempting to assert the
deprivation of a liberty interest. However, the federal constitution “vests no liberty interest in
inmates in retaining or receiving any particular security or custody status as long as the
challenged conditions or degree of confinement is within the sentence imposed and is not
otherwise violative of the Constitution.” Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994).
Placement in administrative segregation is not considered “an atypical or significant hardship in

4

relation to the ordinary incidents of prison life” and thus, does not entitle Plaintiff to due process
protections. McNeil v. Currie, 84 F. App’x 276, 277 (4th Cir. 2003); See Berrier v. Allen, 951
F.2d 622 (4th Cir. 1991). The state of South Carolina likewise declines to recognize a liberty
interest in the custodial status of prisoners. Id. at 595; See Sandin v. Conner, 515 U.S. 472, 48384 (1995) (“[W]e recognize that States may under certain circumstances create liberty interests
which are protected by the Due Process Clause.”). Given the failure of Plaintiff to identify a
deprivation recognized by law, Plaintiff’s due process claim has no merit.
In his Objections, Plaintiff cites four cases from the 1970s decided by several district courts.
(ECF No. 14). These cases stand for the proposition that prisoners have a right to notice of the
rules governing their conduct prior to being exposed to discipline under prison rules. See
Duckett v. Ward, 458 F. Supp. 624 (S.D.N.Y. 1978); Moore v. Janing, 427 F. Supp. 567 (D. Neb.
1976); Martinez Rodriguez v. Jimenez, 409 F. Supp. 582 (D.P.R. 1976), aff’d, 551 F.2d 877 (1st
Cir. 1977); Jones v. Wittenberg, 330 F. Supp. 707 (1971), aff’d sub nom. Jones v. Metzger, 456
F.2d 854 (6th Cir. 1972). Because these cases do not impact the court’s finding at step one of the
due process analysis, the court need not address Plaintiff’s arguments regarding the adequacy of
his disciplinary procedures.
CONCLUSION
Based on the aforementioned reasons and after a thorough review of the Report and the
record in this case, the court ACCEPTS the magistrate judge’s Report and Recommendation
(ECF No. 12), although for differing reasons given Plaintiff’s Objections. Plaintiff’s complaint
is therefore DISMISSED with prejudice and without issuance and service of process.

5

IT IS SO ORDERED.

United States District Judge
October 24, 2013
Greenville, South Carolina

6