Rivera v. Byars et al

Filing 40

ORDER Accepting 31 Report and Recommendation. Plaintiff's 1 complaint is therefore DISMISSED with prejudice and without issuance and service of process. Signed by Honorable J Michelle Childs 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;
)
Robert Stevenson, III, Warden; Ann
)
Hallman, Inmate Grievance Branch Chief; )
Tamika Montgomery, Inmate Grievance
)
Coordinator; Ms. G. Robinson, IGC
)
Designee,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 8:12-cv-03214-JMC

OPINION AND ORDER

This matter is now before the court upon the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 31), filed March 22, 2013, recommending the court
dismiss pro se Plaintiff Kenneth Syncere Rivera’s (“Plaintiff”) § 1983 claim against Defendants
William R. Byars, Jr., Robert Stevenson, III, Ann Hallman, Tamika Montgomery, and Ms. G.
Robinson (collectively referred to as “Defendants”) challenging Defendants’ alleged failure to
timely and properly process Plaintiff’s grievances. 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
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summary as its own. However, a brief recitation of the factual and procedural background in this
case is warranted.
At the time of Plaintiff’s initial filings in the instant case, he was incarcerated in the
Broad River Correctional Institution (“BRCI”), a facility managed by the South Carolina
Department of Corrections (“SCDC”). (ECF No. 1 at 3). Plaintiff filed this action on November
9, 2012 (ECF No. 1), alleging that Defendants violated his First Amendment rights to petition for
the redress of grievances and his Fourteenth Amendment procedural due process rights by
denying his complaints, not processing his complaints, and not following the SCDC grievance
policy. Id. at 10. Plaintiff filed an Amended Complaint (ECF No. 23) in which he named
Defendant Robinson as an additional party and stated similar allegations against her.

Id.

Plaintiff requests that the court issue an injunction requiring Defendants to process his
grievances according to SCDC policy and that the court order compensatory and punitive
damages. (ECF No. 1 at 10; ECF No. 23 at 4).
The magistrate judge issued the Report on March 22, 2013, recommending that the court
dismiss Plaintiff’s complaint as meritless. (ECF No. 31 at 4). The magistrate judge found that
prisoners have no constitutional right to a grievance procedure and therefore concluded that
violations of grievance procedures do not constitute a claim. Id. at 4. On April 5, 2013, Plaintiff
filed Objections to the Report (“Objections”) (ECF No. 34) arguing that prisoners have a
constitutional right to access the courts which includes the right to file grievances. Id. at 3.
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

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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
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).
The Fourth Circuit has clearly held “there is no constitutional right to participate in grievance
proceedings” or to have “access to any such procedure voluntarily established by a state.”
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Plaintiff cites case law in dispute of this
conclusion. Plaintiff first cites Toolasprashad v. Bureau of Prisons, 286 F.3d 576 (D.C. Cir.
2002), which explains that a prisoner’s right to petition the government includes both court
filings and “various preliminary filings necessary to exhaust administrative remedies prior to
seeking judicial review.” Id. at 584. The decision further states that prisoners may not be
retaliated against for exercising these rights.

Id. at 585.

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Plaintiff also cites Hendrick v.

Coughlin, 114 F.3d 390 (2d Cir. 1997), which reiterates that prison officials may not retaliate
against prisoners who exercise their constitutional right to access the courts. Id. at 395.
The court finds that the cases Plaintiff cites address a prisoner’s right to access the courts,
which is distinct from a claim to participate in grievance procedures. See Taylor v. Lang, 483 F.
App’x 855, 858 (4th Cir. 2012) (reflecting a difference between a claim regarding participation
in the prison grievance process and one concerning access to courts). To the extent that Plaintiff
argues his right to access the courts has been denied, he has failed to plead sufficient facts to
state a claim. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (noting that to plead a right
of access to courts claim, “[s]pecificity is necessary so that prison officials are not required to
file unnecessary responses to speculative allegations.”). The prisoner must show an actual, nontrivial injury resulting from the prison official’s alleged misconduct. Id. Plaintiff does not claim
that he has been deprived of his ability to bring a nonfrivolous, legal claim to the courts as is
required for an access to courts claim. Lewis v. Casey, 518 U.S. 343, 351-53 (1996); see also
Akers v. Watts, 740 F. Supp. 2d 83, 96 (D.D.C. 2010) (stating that for an access to courts claim, a
prisoner “must allege actual injuries as a result of the denial by claiming that an actionable claim
was rejected, lost, or prevented from being filed.”).
Because Plaintiff has no right to participate in a grievance procedure and he has not
sufficiently pled an access to courts claim, the court dismisses Plaintiff’s complaint.
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. 31).

Plaintiff’s complaint is therefore DISMISSED with prejudice and without

issuance and service of process.

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IT IS SO ORDERED.

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

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