Rivera v. Byars et al

Filing 93

ORDER Accepting 86 Report and Recommendation. It is ORDERED that Defendants' 56 Motion for Summary Judgment is GRANTED, and Plaintiff's 21 Motion for Temporary Restraining Order is MOOT. Signed by Honorable J Michelle Childs on 7/25/13. (kmca)

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

)
)
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Plaintiff,
)
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v.
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Agency Director William R. Byars, Jr.;
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Warden Robert Stevenson, III; Eugene
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Keitt, BRCI Mailroom Personnel; Susan H. )
Fry, BRCI Mailroom Personnel; James
)
Harris, BRCI Mailroom Personnel; SCDC )
Postal Director Maria Leggins; and Rodney )
Cox, BRCI Mailroom Designee,
)
)
)
Defendants.
)
____________________________________)

Case No. 8:12-cv-02469-JMC

OPINION AND ORDER

This matter is before the court upon review of the Magistrate Judge’s Report and
Recommendation (“Report”), [Dkt. No. 86], filed on May 30, 2013, recommending that
Plaintiff’s Motion for Temporary Restraining Order [Dkt. No. 21] be found moot and that
Defendant’s Motion for Summary Judgment [Dkt. No. 56] be granted. The Report sets forth in
detail the procedural history and the legal standards applicable to this matter, which the court
incorporates herein.
FACTUAL BACKGROUND
Plaintiff Kenneth Rivera (“Plaintiff”), proceeding pro se, alleged violations of 42 U.S.C.
§ 1983 by personnel (“Defendants”) of the Broad River Correctional Institute (“BRCI”). [Dkt.
No. 1.] He was incarcerated at BRCI at the time of the alleged incidents, but has since been
released. [See Dkt. No. 91 at 1.] Plaintiff contends that his constitutional rights were violated
when Defendants denied him access to certain publications that he had received previously,

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specifically a periodical from “Rising Sun Press,” a periodical from “Anthropological Prison
Outreach Library,” and an underground publication known as “South Chicago Abc Zine Distro.”
[Dkt. No. 86 at 2-3; Dkt. No. 1 at 3-4, 7-9.] Plaintiff also contends that Defendants did not allow
him to send out personal mail [Dkt. No. 86 at 3; Dkt. No. 1 at 3-4, 7-9], delivered his mail late
(three to five days after it had been received at the BRCI mailroom) [Dkt. No. 21], violated state
grievance procedures [Dkt. No. 86 at 3-4 n.3], and opened his legal mail outside his presence [Id.
at 3 n.3].
STANDARD OF REVIEW
The Report 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 Court is not bound by the recommendation of the
magistrate judge but, instead, retains responsibility for the final determination.” Wallace v.
Hous. Auth., 791 F. Supp. 137, 138 (D.S.C. 1992) (citing Matthews v. Weber, 423 U.S. 261, 271
(1976)). The court is charged with making a de novo determination of those portions of the
Report 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).
“In the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (quoting FED. R. CIV. P. 72 advisory committee’s note). Furthermore, failure
to timely file specific written objections to the Report results in a party’s waiver of his right to
appeal the judgment of the District Court based on such a recommendation. 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Adams v. South Carolina, 244 F. App’x 534,

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535 (4th Cir. 2007); Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
Plaintiff timely filed objections to the Report. [Dkt. No. 91.] Objections to the Report
must be specific. Failure to file specific objections constitutes a waiver of a party’s right to
further judicial review, including appellate review, if the district judge accepts the
recommendation. See Schronce, 727 F.2d at 94, n.4. In the absence of specific objections to the
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
Having reviewed the Report, the record, and Plaintiff’s objections, the court finds that the
objections are non-specific, unrelated to the dispositive portions of the Report, and merely restate
his claims. Plaintiff restates from his Response to the Motion for Summary Judgment [Dkt. No
79] that (1) Defendants denied him access to certain publications, (2) Defendants withheld or
delayed delivery of his legal mail, and (3) Defendants opened his legal mail outside of his
presence [Dkt. No. 91 at 1.] However, the court finds that Plaintiff’s first and second objections
are still pertinent to discuss.
Plaintiff’s first objection concerns the Magistrate Judge’s finding that Plaintiff does not
have a valid First Amendment claim. Plaintiff alleges that he was denied access to certain
publications. [Dkt. No. 91 at 1.] Attached to Plaintiff’s objections are copies of the completed
SCDC Form 10-6, which serves to provide inmates with notice that their incoming or outgoing
mail (i.e., incoming publications) has been withheld and/or disapproved by the Correspondence
Review Committee (“CRC”). See Exhibit V and Z, Notice to Withhold [Dkt. No. 91-2]. The
copies that Plaintiff provides demonstrate that his incoming publications were reviewed and

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denied by the CRC due to his status as an inmate within the Special Management Unit (“SMU”)
and in accordance with SCDC Policy PS-10.8 § 9.1. However, Plaintiff failed to prove (1) that
SCDC Policy PS-10.8 § 9.1, which denies publications to inmates housed within SMU, fails to
meet some penological interest or (2) that no alternative avenues remain open for him to exercise
his First Amendment rights. [See Dkt. No. 86 at 12]; Overton v. Bazetta, 539 U.S. 126, 132
(2003) (holding that the burden of proof is not Defendants to prove the validity of a prison
regulation, the burden is on Plaintiff to disprove it); Turner v. Safley, 482 US 78, 89-90 (1987)
(determined that the standard used to review prison regulations is whether the regulation
rationally relates to legitimate penological interests and whether there are no alternative means of
exercising the right that remain open to prison inmates).
Plaintiff’s second objection concerns the late delivery of his legal mail. [See Dkt. No. 91
at 1.] With his objections, Plaintiff provides photocopies of envelopes labeled as legal mail,
which he alleges were personally received days after the mail was received by the BRCI
mailroom. See Exhibit O [Dkt. No. 91-3.] The envelopes are clock-stamped to indicate the date
the mail was received by the BRCI mailroom. The envelopes are also marked with handwritten
notes, presumably Plaintiff’s, to indicate when the mail was delivered to him.1 Plaintiff alleges
that delayed delivery of mail is a violation of SCDC’s Policy, yet SCDC policy does not mandate
any deadline by which mail must be delivered. [Dkt. No. 86 at 11; Dkt. No. 56-1 at 2 ¶ 8].
Rather, SCDC Policy PS-10.08 § 5.1 states that it is “SCDC’s goal to distribute letters to inmates
within 24 hours of receipt . . . (excluding weekends and holidays).” [Dkt. No. 56-1 at 4 § 5.1].
Given that mail may be delayed due to weekends and holidays, the court finds that the three to
five day delay that Plaintiff alleges is reasonable. Moreover, Plaintiff has failed to demonstrate
that SCDC Policy PS-10.08 § 5.1 is not reasonably related to some penological interest and has

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This court finds that these documents are not properly authenticated.

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failed to allege any damages resulting from the delay in the delivery of his mail. [Dkt. No. 86 at
12].
Furthermore, the Magistrate Judge found Plaintiff’s Motion for Temporary Restraining
Order is moot because Plaintiff is no longer incarcerated at BRCI [see Dkt. No. 86 at 9; see also
Dkt. No. 91 at 1]; thus, the motion is no longer relevant.
CONCLUSION
Thus, after a thorough review of the Report and the record in this case, the court adopts
the Report [Dkt. No. 86] and incorporates it herein. It is therefore ORDERED that Defendant’s
Motion for Summary Judgment [Dkt. No. 56] is GRANTED, and Plaintiff’s Motion for
Temporary Restraining Order [Dkt. No. 21] is MOOT.

IT IS SO ORDERED.

United States District Judge

July 23, 2013
Greenville, South Carolina

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