Rivera v. Byars et al

Filing 20

ORDER Accepting 15 Report and Recommendation. Plaintiff's complaint is therefore DISMISSED with prejudice and without issuance and service of process. Signed by Honorable J Michelle Childs on 10/28/13. (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.
)
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William R. Byars, Jr., Agency Director;
)
Larry Cartledge, Warden; Daniel Carter,
)
Sergeant; Mr. Benzniski, Correctional
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Officer,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 8:13-cv-01233-JMC

ORDER AND OPINION

This matter is now before the court upon the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 15), filed May 21, 2013, recommending the court dismiss
pro se Plaintiff Kenneth Syncere Rivera’s (“Plaintiff”) § 1983 claim against Defendants William
R. Byars, Jr., Larry Cartledge, Daniel Carter, and Mr. Benzniski (collectively referred to as
“Defendants”), which challenged Defendants’ confiscation of § 1983 pro se forms, documents
from an attorney, a newsletter, and pair of boots as violative of the First, Fourth, and Fourteenth
Amendments. (ECF No. 1). 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 his filings in the instant case, Plaintiff was incarcerated in the Perry
Correctional Institution (“PCI”), a facility managed by the South Carolina Department of
Corrections (“SCDC”). (ECF No. 1 at 2). Plaintiff filed this action on May 9, 2013 (ECF No.
1), alleging that Defendants violated the First, Fourth, and Fourteenth Amendment by seizing
from him, in the midst of his transfer to another prison, § 1983 pro se forms, documents from an
attorney, a newsletter, and a pair of boots. Id. at 4. In his response to the Court’s Special
Interrogatories (ECF No. 11), Plaintiff explained that the documents he was missing from an
attorney were newsletter updates of South Carolina state court decisions. Id. at 1. Plaintiff also
revealed that the attorney who provided him with these updates was not his post-conviction relief
counsel or trial counsel in his criminal case. Id. at 2. Plaintiff requests that the court declare
Defendants violated his constitutional rights, issue an injunction requiring Defendants to return
his belongings, and order compensatory and punitive damages. (ECF No. 1 at 5).
The magistrate judge issued the Report on May 21, 2013, recommending that the court
dismiss Plaintiff’s complaint as meritless. (ECF No. 15 at 8). The magistrate judge found no
constitutional deprivation in the confiscation of Plaintiff’s legal materials because the loss of the
newsletter updates did not frustrate a legal claim or prevent an action from being filed. Id. at 4
(citing Lewis v. Casey, 518 U.S. 343, 349 (1996); White v. White, 886 F.2d 721, 724 (4th Cir.
1989); Carter v. Hutton, 781 F.2d 1028, 1031-32 (4th Cir. 1986); Michau v. Charleston County,
S.C., 434 F.3d 725, 728 (4th Cir. 2006)).
In construing Plaintiff’s claims as a loss of personal property, the magistrate judge
concluded that damages for deprivations of personal property are not available under § 1983.

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(ECF No. 15 at 5 (citing Daniels v. Williams, 474 U.S. 327, 328-36 & n.3 (1986))). The
magistrate judge likewise found that no § 1983 relief is available to plaintiffs who have a viable
remedy under state law for the loss of personal property. (ECF No. 15 at 6 (citing Yates v.
Jamison, 782 F.2d 1182, 1183-84 (4th Cir. 1986))). Accordingly, the court stated that Plaintiff’s
proper judicial remedy would be under the South Carolina Tort Claims Act. (ECF No. 15 at 67).
On May 31, 2013, Plaintiff filed Objections to the Report (“Objections”) (ECF No. 17).
In his Objections, Plaintiff asserts that his claim of a deprivation of property is cognizable under
the Fourth Amendment’s protections against unreasonable searches and seizures.

Id. at 2.

Plaintiff also contends he is entitled to § 1983 relief under the doctrines of denial of procedural
due process and denial of access to the courts. Id. at 2-3.
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
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

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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).
Plaintiff’s first contention is that Defendants’ confiscation of his belongings infringed upon
his Fourth Amendment rights. Plaintiff’s argument fails because “prisoners have no legitimate
expectation of privacy and…the Fourth Amendment’s prohibition on unreasonable searches does
not apply in prison cells[.]” Hudson v. Palmer, 468 U.S. 517, 530 (1984).
Plaintiff also argues that the prison officials violated his right to procedural due process.
However, as the magistrate judge noted, relief for this claim is unavailable to Plaintiff given that
a meaningful post-deprivation remedy was available to Plaintiff under state law.

Id. at 536

(holding that an intentional deprivation of property by a state employee does not violate due
process where the state has provided an adequate remedy); Daniels, 474 U.S. at 328 (“[T]he Due
Process Clause is simply not implicated by a negligent act of an official causing unintended loss
of or injury to life, liberty, or property.”).
Plaintiff fails to state a claim of denial of access to the courts because he does not allege that
he has been deprived of the ability to bring a nonfrivolous, legal claim. Lewis, 518 U.S. at 35153; 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.”).

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Because Plaintiff has no right to Fourth Amendment protections, has an adequate remedy in
state law for the alleged deprivation of his personal property, and has not pled sufficient facts to
state 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. 15).

Plaintiff’s complaint is therefore DISMISSED with prejudice and without

issuance and service of process.
IT IS SO ORDERED.

United States District Judge
October 28, 2013
Greenville, South Carolina

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