Lucas v. Ozmint et al

Filing 60

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying 41 Motion to Certify Class; denying 41 Motion to Appoint Counsel ; granting 42 Motion for Summary Judgment and dismissing this matter with prejudice. Signed by Honorable Cameron McGowan Currie on 1/10/2012.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Martin Walter Lucas,

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Plaintiff,
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v.
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Jon Ozmint, John and/or Jane Doe;
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Timothy Riley, Acting Warden; and
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Ms. Merchant, Mail Room Supervisor,
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Defendants.
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___________________________________ )

C/A NO. 9:10-17-CMC-BM

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint, filed in this court pursuant to
42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), DSC, this matter
was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings and a
Report and Recommendation (“Report”). On September 15, 2011, the Magistrate Judge issued a
Report recommending that Defendants’ motion for summary judgment be granted and this matter
dismissed with prejudice. The Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the serious consequences if they failed to do so.
Plaintiff filed objections to the Report on October 6, 2011.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review as to objections made, and considering the record, the
applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections,
the court agrees with the conclusions of the Report.
Plaintiff raises three main objections to the Report. First, Plaintiff disagrees with the
Report’s analysis of, and weight given to, the “facts” and the Report’s alleged failure to examine the
“actual” legitimacy and reasonableness of the policies in question regarding restrictions on certain
forms of photographs and various magazines. Plaintiff contends that “summary judg[]ment is not
appropriate if facts are conflicting,” Obj. at 2, and that the Report “seems to have been based upon
an elevated requirement of proof needed by the Plaintiff to establish the existence of genuine
material facts into the realm of ‘clear and convincing’ parameters.” Id. at 8. Second, Plaintiff
objects to the Report’s deference to the rationale given by prison authorities in support of the
restrictive mail policies in question because (he contends) affidavits presented by Defendants are
unreliable, false, and misleading. See Obj. at 4. Third, Plaintiff objects to the “level of proof
applied solely to the Plaintiff’s evidentiary basis and arguments.” Id. at 12. The court agrees with
Plaintiff’s contention that the Report fails to view the facts in the light most favorable to Plaintiff.
Therefore, the court considers the facts in the light most favorable to Plaintiff but concludes that
Defendants are entitled to summary judgment.
A. OFFICIAL CAPACITY CLAIMS
The individually-named Defendants are employees of SCDC which is an “arm of the state.”
Therefore, to the extent sued in this “official capacity,” Defendants are immune from suit because

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they are treated as “arms of the State.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70
(1989). Plaintiff, however, seeks a “compensation order,” which this court construes as seeking
monetary relief from the Defendants in their individual capacities. Therefore, to the extent sued in
their individual capacities, Defendants are not immune from suit.
B. DEFENDANTS TO BE DISMISSED
1. JON OZMINT
Plaintiff has sued Jon Ozmint, (former) Director of the South Carolina Department of
Corrections (SCDC). Plaintiff alleges that each Defendant listed is “responsible for the actions
complained of with ultimate responsibility falling within the supervisory umbrella” of Defendant
Ozmint. Compl. at 9 (ECF No. 1, filed Jan. 5, 2010).
It is well settled that “supervisory officials may be held liable in certain circumstances for
the constitutional injuries inflicted by their subordinates.” Baynard v. Malone, 268 F.3d 228, 235
(4th Cir. 2001) (quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994)). Such liability is not
based on ordinary principles of respondeat superior, but rather is premised on “a recognition that
supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor
in the constitutional injuries they inflict on those committed to their care.” Slakan v. Porter, 737
F.2d 368, 372 (4th Cir. 1984). In order to establish supervisory liability under § 1983, a plaintiff
must demonstrate:
(1) that the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional
injury to citizens like the plaintiff; (2) that the supervisor’s response to that
knowledge was so inadequate as to show ‘deliberate indifference to or tacit
authorization of the alleged offensive practices’; and (3) that there was an
‘affirmative causal link’ between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.”

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Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 206 (4th Cir. 2002). “A pervasive risk of
harm (under this principle) may not ordinarily be shown by pointing to a single incident or isolated
incidents,” Withers v. Levine, 615 F.2d 158, 161 (4th Cir. 1980), nor is a “(s)howing that individual
officers violated a person’s constitutional rights on an isolated occasion . . . sufficient to raise an
issue of fact whether adequate training and procedures were provided.” McClelland v. Facteau, 610
F.2d 693, 697 (10th Cir. 1979).
Plaintiff fails to establish a genuine issue of material fact which might reveal the presence
of the required elements for supervisory liability against Defendant Ozmint. Therefore, Ozmint is
entitled to summary judgment and he is dismissed from this action with prejudice.
2. “JOHN AND/OR JANE DOE, CHAIRPERSON”
A plaintiff may name “John Doe” as a defendant when the identity of a defendant is
unknown. Boyd v. Gullet, 64 F.R.D. 169 (D. Md. 1974). However, a district court is not required
“to wait indefinitely” for a plaintiff to provide a defendant’s true identity to the court. Glaros v.
Perse, 628 F.2d 679, 685 (1st Cir.1980). Plaintiff has had sufficient time to identify all the
defendants in this action yet has failed to do so.
It is well-settled that in order for an individual to be liable under § 1983, it must be
affirmatively shown that the official charged acted personally in the deprivation of the plaintiff’s
rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). Beyond adding “John and/or Jane
Doe, Chairperson” to the caption of his case, the allegations in the complaint go to the actions of the
purported committee as a whole, not particular actions by “John and/or Jane Doe, Chairperson.”
Therefore, for the reason discussed above relating to requirements for supervisory liability,
Defendant “John and/or Jane Doe, Chairperson,” is dismissed from this action with prejudice.

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C. DISCUSSION – REMAINING CLAIMS
Plaintiff contends that certain portions of the affidavits of Dennis Patterson, Operations Chief
of SCDC, and Nancy Merchant are incorrect. For example, in support of Defendants’ summary
judgment motion, Patterson avers that photocopies of photographs are prohibited by SCDC Policy
PS 10.08, paragraph 5.5.5. See Aff. of Dennis Patterson at ¶ 11 (“Paragraph 5.5.5 prohibits
photographs scanned from a computer or photocopied.”) (emphasis added). As correctly noted by
Plaintiff, this is inaccurate, as the policy only bans “[p]hotographs that have been scanned from a
computer . . . .” Attach. A to Patterson Aff., (SCDC Policy PS 10.08, para. 5.5.5), ECF No. 42-3
at 2 (filed Apr. 28, 2011).1
The court agrees that, in the light most favorable to Plaintiff, the Report’s reliance on this
portion of Patterson’s affidavit is faulty. Accordingly, this court finds that the policy, by its terms,
bans photographs scanned from a computer. However, while the policy itself does not address
“photocopies” of photographs, the rationale given for prohibiting computer-scanned photographs
would apply equally to “photocopied” copies of photographs; namely, that certain inmates attempt
to circumvent rules relating to possession of loose photographs by copying multiple photographs

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Plaintiff also contends Merchant never informed him that the reason the letter which
accompanied the copies of photographs was withheld was because it was prohibited inmate-toinmate correspondence. See Merchant Aff. at ¶ 5 (“[N]one of the exceptions [for inmate-to-inmate
correspondence] applied to the Plaintiff. Therefore, the mail from the other inmate was not
delivered to Plaintiff because it violated policy.”). While this reason may not have been given to
Plaintiff at the time the letter was withheld, this does not change the fact that Plaintiff’s grievances
and the complaint in this case speak almost exclusively to the “copies” of photographs, not the letter
itself. Plaintiff was apparently told, at the time it was withheld, that the letter itself was contraband
because of the “copies” of the photographs it contained. He did not seek to grieve this finding that
the letter itself would not be delivered to him; that is, that the letter was not contraband because of
its contents.
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onto one page and claiming they are documents, not photographs subject to the limitations on
photographs.
D. CONCLUSION
For these reasons and the reasons set forth in the Report, Plaintiff’s motions to certify class
and for appointment of counsel are denied. Defendants’ motion for summary judgment is granted
and this matter is dismissed with prejudice.
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
January 10, 2012

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